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Civil Procedure complete notes Civil Procedure (Queensland University of Technology)

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LLB 306 CIVIL PROCEDURE Contents OVERVIEW.............................................................................................................................................2 COSTS DISCLOSURE AND ASSESSMENT.................................................................................................5 COMMENCING PROCEEDINGS...............................................................................................................8 JURISDICTION......................................................................................................................................13 LIMITATION OF ACTIONS.....................................................................................................................22 JOINDER OF PARTIES...........................................................................................................................24 SERVICE...............................................................................................................................................33 NOTICE OF INTENTION TO DEFEND.....................................................................................................43 INTRODUCTION TO PLEADINGS (GENERALLY).....................................................................................51 PARTICULAR PLEADINGS......................................................................................................................57 3.0 STATEMENT OF CLAIM...................................................................................................................58 4.0 DEFENCE........................................................................................................................................61 5.0 COUNTERCLAIM.............................................................................................................................64 6.0 REPLY.............................................................................................................................................65 7.0 ANSWER......................................................................................................................................... 66 8.0 CLOSE OF PLEADINGS....................................................................................................................66 DISCLOSURE.........................................................................................................................................68 AFFIDAVITS..........................................................................................................................................80 SUBPOENAS.........................................................................................................................................84 DISPOSITION WITHOUT TRIAL: ADR....................................................................................................89 DISPOSITION WITHOUT TRIAL: DEFAULT JUDGMENT.........................................................................99 DISPOSITION WITHOUT TRIAL: DISMISSAL FOR WANT OF PROSECUTION........................................103 DISPOSITION WITHOUT TRIAL: SUMMARY JUDGMENT.....................................................................105 DISPOSITION WITHOUT TRIAL: DISCONTINUANCE AND WITHDRAWAL............................................108 DISPOSITION WITHOUT TRIAL: SETTLEMENT OFFERS.......................................................................111 ENFORCEMENT OF MONEY ORDERS.................................................................................................117 COSTS................................................................................................................................................136 CIVIL APPEALS....................................................................................................................................145

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OVERVIEW 

The adversarial system of justice involves:   

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Disputing Parties Neutral third party - judge Judge acts as umpire, with parties controlling the substance of the hearing

History  All systems derived from the same basic story: two individuals arguing something but reach an impasse, so need an unknown TP to determine who is right Adversarial means in relation to the disputes and the procedural system that allows each side to present case through oral interrogation of witnesses in an adversarial system Philosophy – overriding obligations of parties and court - UCPR r 5  The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.  Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.  In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.  The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.  Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2.6.8C]

1.1 COMPARISON: FEATURES OF AN INQUISITORIAL SYSTEM     

Judge is inquisitor Written submissions major role, with less emphasis on oral argument Numerous sessions No Trial Role played by lawyer is less conspicuous

1.2 PROCEDURAL REFORMS  

Uniform Civil Procedure Rules 1999 (Qld) Legislation dealing with personal injuries  Motor Accident Insurance Act 1994 (Qld)  Workers Compensation and Rehabilitation Act 2003 (Qld)  Personal Injuries Proceeding Act 2002 (Qld)  Civil Liability Act 2003 (Qld)

1.3 STAGES OF AN ACTION

1. Pleadings 2

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2. Fact Finding 3. Judgment 4. Enforcement 5. Costs 1.4 PLEADINGS 

Documents from which the various parties to a dispute set out their argument – court requires them to be filed and delivered between the parties to detail to the court how their arguments and defences interrelate – they are:  Claim (but under previous and other jurisdictions, called Writ of Summons, and a Plaint) o Served on other side to make them aware they are being sued and to contest it 

Statement of Claim (attached to claim) o Detailed account of what makes up the actions (e.g agreement was reached on x date for x and did not respect agreement and this is why they are suing)

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Notice of intention to defend (historically called an Appearance) o From the D in response

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Defence / Counterclaim o Defence sets out grounds why D does not fall within P's claim, setting out what parts of the P's story are wrong and says what is the true factual position (rules governing this) o Counterclaim (can be included) - e.g P's claim of $200 is wrong AND in fact owes $300 to D as well because of x, y and z

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Reply / Answer o Reply – responding to a defence o Answer – responding to reply or counterclaim

1.5 'FACT FINDING' 

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Disclosure - disputants makes relevant evidence available to other side to narrow down on issues  Disclosure of documents  Non-party disclosure (allows access to non-party documents)  Interrogatories (seeking leave to deliver series of questions to other side whom is required to answer on oath)  Medical examinations (wanting D medically examined)  Inspections, taking of samples (e.g such as property damage alleged) Trial 

Oral testimony under oath as to exactly what happened

1.6 JUDGMENT 

Judge imposes a decision based upon the substantive law

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 

Looks at all evidence, makes determination as to credibility Judgement is sometimes only halfway there

1.7 ENFORCEMENT 

Recovering the judgment debt:  Warrant for redirection of earnings – judgment against for amount of money; rules set out how much of the debtor's pay packet the debtor can hold onto until the judgment creditor is able to take money away from them  Warrants of Execution – assistance of sheriff to seize assets  Bankruptcy – bankrupting the debtor and have their assets managed by a trustee in bankruptcy who works out an equitable way to distribute assets

1.8 ASSESSMENT OF COSTS   

Itemisation of costs (done by independent practitioners) Assessment of what portion of those costs are recoverable from the judgment debtor Assessor goes through all items to see what is necessary and what might have been excessive, then an amount is given Reality: the cost you get can be substantially less than the costs ordered

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1.9 ALTERNATIVE OUTCOMES (DISPOSITION

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Settlement – discontinuing the action and filing an agreement that court is no longer the desired option Summary Judgment Default Judgment – if no plead or not showing up, default judgment might be awarded ADR - Alternative Dispute Resolution Processes  Parties sometimes forced to do this as Court can ordered this to occur first before trying the issue

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COSTS DISCLOSURE AND ASSESSMENT s308 Disclosure of Costs to Client

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(1) A law practice must disclose to a client under this division: o (a) basis on which legal costs will be calculated, o (b) the client’s right to:  (i) negotiate a costs agreement with the law practice; and  (ii) receive a bill from the law practice; and  (iii) request an itemised bill after receipt of a lump sum bill; and  (iv) be notified under s315 of any substantial change to the matters disclosed o (c) an estimate of the total legal costs if practicable or, a range of estimates of costs and an explanation of variables; and o (d) details of the intervals for billing; and o (e) the rate of interest, on overdue legal costs and o (f) if a litigious matter, an estimate of:  (i) range of costs recoverable if the client is successful; and  (ii) range of costs may be ordered to pay if unsuccessful; and o (g) the client’s right to progress reports under section 317; and

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o (h) details of the person to contact to discuss costs; and o (i) Avenues available in event of dispute about costs, including applicable time limits;:  (i) costs assessment under division 7;  (ii) the setting aside of a costs agreement under section 328; and o (j) any time limits that apply to the taking of any action mentioned in paragraph (i); and o (k) that the law of this jurisdiction applies to legal costs in relation to the matter; and o (l) information about the client’s right:  to accept under a corresponding law a written offer to enter into an agreement with the law practice that the corresponding provisions of the corresponding law apply to the matter; or  to notify under a corresponding law, and within the time allowed by the corresponding law, the law practice in writing that the client requires the corresponding provisions of the corresponding law to apply to the matter

Forms and requirements 

s308(5) o A law practice may disclose any or all of the details mentioned in subsection (1)(b)(i), (ii) and (iii), (g), (i), (j) and (l) in or to the effect of a form approved by the chief executive o if it does so the practice is taken to have complied with this section in relation to the details so disclosed o NB: usually met by a prescribed form such as Form 1 or one chosen by firm.

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s310 (1) o Disclosure under s308 must be made in writing before or as soon as practicable after the law practice is retained in the matter o (3) Disclosure made to a person before the law practice is retained in a matter is taken to de disclosure to the client for s308.

EXCEPTIONS 

S311 - Disclosure under s 308 is not required to be made in circumstances:  (a) total legal costs won’t exceed $750 or if higher amount prescribed by regs (see s80LPR = $1500)  (b) if o (i) client has received 1 or more disclosures under s308 form law practice in prev 12/12; and o (ii) client has agreed in writing to waive right to disclosure; and o (iii) principal of law practice decides on reasonable grounds that, having regards to nature of prev disclosures and relevant circumstances further disclosure not warranted  (c) “sophisticated client” - if client is o (i) law practice or Aust Legal Practitioner; or o (ii) Public Co / Subsidiary Co

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o (iv) Liquidator, Administrator or receiver; o (v) partnership more than 20 members o (vi) Pty Co for joint venture   

(d) legal costs or basis calculated have or has been agreed as a result of a tender process; (e) client not required to pay legal costs or they will not otherwise be recovered by the law practice (i.e pro bono) (f) circumstance prescribed by reg.

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Settlement of litigious matters:  s312 (1) If a law practice negotiates the settlement of a litigious matter on behalf of a client, before the settlement is executed, the law practice must disclose the following to the client: o (a) a reasonable estimate of the amount of legal costs payable by the client if the matter is settled, including any legal costs of another party that the client is to pay; o (b) a reasonable estimate of any contributions towards those costs likely to be received from another party.  (2) However, a regulation may provide for matters relevant to subsection (1) when there is more than 1 law practice acting on behalf of a client

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Contingency fees prohibited s325 o Law practice must not enter into costs agreement under which amount payable is calculated by reference to amount of any award or settlement of the value of any property that may be recovered in any proceeding to which agreement relates. o (2) N/a if agreement adopts scale of costs. o (3) Cant enter costs agreement where client’s interest in something transferred to law practice instead of client paying fees. o Eg. Can’t say that you don’t need to pay me now but I’ll take 20% of your damages

Consequences if breach of Cost Disclosure

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s327(1) o Agreements made in breach of Div (i.e div 5 Costs agreements s322-328) are void.

PHILOSOPHY BEHIND COSTS DISCLOSURE 

r5(1) The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. (2) Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.

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In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.

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The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.

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Aon Risk Services Aust Ltd v ANU – Facts: In 2003 bushfires destroyed ANU property in Observatory. ANU sued 3 insurers. 2 insurers in defence pleaded property not covered in policy and entitle to reduce liability to indemnify as property had been undervalued by ANU. ANU’s insurance broker, Aon Risk joined as a defendant. ANU pleaded that if property not covered in policy then Aon breached its DOC to ANU by failing to arrange insurance for it. ANU settled with 1 defendant, then when day 1 of 4 week trial commenced, ANU settled with other 2 and consent judgments were entered. ANU applied to amend SofC on basis and plead incorrect valuation and breached contract services. TJ and appeal court allowed amendment and adjournment focussing on (1) Power to amend (ACT rr 502/503) and (2) purpose of Act (ACT r21). HC Held: focussing on purpose of Act – party beared a huge burden to show why under proper reading of Court rules why leave should be granted to amend application. French CJ stated that unfair prejudice from delaying of proceedings, publicly funded so inefficient to misuse resource should be taken into account. And the need to maintain public confidence – nature, circumstances in which sought, amendment to SofC shouldn’t have been allowed. R 21 supplemented His Honour’s decision that amendment shouldn’t have been allowed as minimum delay and expense was not controlled. Gummow, Hayne, Crennan, Kiefel and Bell JJ: a just resolution must remain paramount consideration in light of purpose in r21. In exercising powers under UCPR, the purpose in r21 must be take into consideration / be pursued.

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SCPD17(2012): proceeding should be ready for trial / resolved 180 days after defence filed, if not ready in this time court will impose direction to ensure proceeding is prepared for trial with appropriate non-compliance sanctions i.e deem trial resolved + MORE RULES.

COMMENCING PROCEEDINGS Which court? 

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Determined by amount of money involved

Which registry?  Central registry: r 33 o Any Central Registry can have a proceeding commenced in it: r 33

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Central Registries in QLD o SC: Brisbane, Rockhampton, Townsville and Cairns o DC: Brisbane, Rockhampton, Townsville and Cairns o MC: Brisbane, Rockhampton, Townsville and Cairns

 Registry other than central registry: r 35 o Can be commenced in  District where defendant or respondent resides or carries on business: r

35(1)(a)  If more than one D, district where one of the D lives or carries on business: (b)  

Any district to which the defendants/respondents have agreed in writing: r 35(1)(c) District in which defendant/respondent has undertaken in writing to pay a debt or other amount: r 35(1)(d)  Place where payment made must be clear from face of document: inference will not be sufficient: Pennisi v Hogan

o District in which all or part of the claim or cause of action arose: r 35(1)(e) o If proceeding for recovery of possession of land – district in which land located:

r 35(1)(f)

1.1 WHICH TYPE?: CLAIM OR APPLICATION  

Claim - factual disputes, follow rules of disclosure (plaintiff, defendant) Originating application - disputes as to the law no dispute about facts, faster access to courts for a judge to tell you what the law is (applicant, respondent)

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A proceeding must be started by claim (r 9 – claim compulsory) unless these rules require or permit the proceeding to be started by application (r 10-12)

1.1.1 APPLICATION COMPULSORY

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Under r 10, proceeding must be started by application if Act or UCPR require/permit person to apply to court for order or another kind of relief; and  Relevant law does not state type of originating process to be used; or  Type of originating process (other than claim/application) required/permitted under relevant law  If right to relief is under an act; if CL cause of action (neg), not applicable

1.1.2 APPLICATION PERMITTED

Under r 11 UCPR, a proceeding may be started by application if:  the only or main issue is one of law, with a substantial dispute of fact unlikely;  there is no opposing party or intention to serve any person with the originating process; or

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