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LAWS1014 Civil Procedure Notes (2020)

Concluding Proceedings: Summary Disposition and Settlement Summary Disposition Default Judgement If the defendant does not file a defence within the time period under UCPR r 14.3 (28 days), they are in default – r 16.2(1)(a). The plaintiff may file a notice of motion (r 18.1) for a default judgement for his claim by means of r 16.3(1), which can be dealt in the absence of the defendant and need not be served – r 16.3(2). Unliquidated damages and costs (i.e., must be calculated by the court e.g., non-economic loss, pain and suffering) are assessed separately from the judgement while liquidated damages are awarded within the judgement which may include the sum claimed, interests and costs. Mixed claims can award liquidated damages with judgement. Default Judgement of a Debt or Liquidated Claim – UCPR r 16.6: (1) If the plaintiff’s claim against a defendant in default is for a debt or liquidated claim or for a claim for unliquidated damages of the kind referred to in rule 14.13(2), judgment may be given for the plaintiff against the defendant for— (a) a sum not exceeding the sum claimed, and (b) interest up to judgment, and (c) costs. … Default Judgement of an Unliquidated Claim – UCPR r 16.7(1): If the plaintiff’s claim against a defendant in default is for unliquidated damages only, judgment may be given for the plaintiff against the defendant for damages to be assessed and for costs. Default Judgement of a Mixed Claim – UCPR r 16.8(1): If the plaintiff’s claim against a defendant in default includes any 2 or more of the claims referred to in this Part, and no other claim, judgment may be given for the plaintiff against the defendant on any of those claims as if it were the plaintiff’s only claim for relief against that defendant. Power to Set Aside a Judgement General Power to Set Aside a Judgement or Order – UCPR r 36.15: (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. (2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent. Further Power to Set Aside a Judgement or Order – UCPR r 36.15: (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if— (a) it is a default judgment (other than a default judgment given in open court), or

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(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or (c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order. (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it— (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief. (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. (3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered. (3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B). (4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order. Setting Aside a Default Judgement The court has the power to set aside default judgements after they have been entered, as provided by r 36.16(2)(a) and (b) of the UCPR. A defendant may file a notice of motion under UCPR r 18.1 for a court to set aside a default judgement, however, the defendant must satisfy the court that it is in the interests of justice to do so. Alternatively, a defendant may file a notice of appearance, r 6.9 UCPR, and take part in the damages assessment for unliquidated damages.

Cronau v Vavakis (No 3) [2018] - The test requires the defendant to set out bona fide grounds of defence, and an adequate explanation for the failure to defend and length of delay. (citing Dunwoodie v Teachers Mutual Bank Ltd [2014]). The latter is not a high-threshold test. - In relation to the bona fide defence, the defendant only need establish a fairly arguable issue in fact or law (citing Dai v Zhu [2014]). - The court give weight to the strength of the defence or the adequacy of any explanation as to the failure to defend (e.g., the appearance of a strong bona fide defence warrants a more lenient assessment of the explanation for the failure to defend).

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Summary Judgement Plaintiff can apply (notice of motion: r 18.1) for summary judgment against a defendant under UCPR r 13.1 when there is no valid defence, or a defence only as to damages claimed. An application for summary judgment can be made as to the whole of a claim or any part of a claim, and must include affidavit evidence given by the plaintiff or some responsible person of a belief (distinguished from opinion) that the grounds for summary judgment are satisfied. The court has the power to set a summary judgement aside per rr 36.15, 36.16 (like default). Summary Judgement – UCPR r 13.1: (1) If, on application by the plaintiff in relation to the plaintiff’s claim for relief or any part of the plaintiff’s claim for relief— (a) there is evidence of the facts on which the claim or part of the claim is based, and (b) there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or no defence except as to the amount of any damages claimed, the court may give such judgment for the plaintiff, or make such order on the claim or that part of the claim, as the case requires. (2) Without limiting subrule (1), the court may give judgment for the plaintiff for damages to be assessed. (3) In this rule, a reference to damages includes a reference to the value of goods. Cosmos E-C Commerce v Bidwell & Assocs [2005] - UCPR r 13.1 has three requirements: 1. There must be evidence of the facts on which the claim is based. 2. There must be evidence of the belief that the defendant has no defence to the claim. 3. If those two requirements are established, then the court has a discretion as to whether or not to exercise the power conferred by the rule. Summary Dismissal A defendant (or cross-defendant) can apply for summary dismissal against a plaintiff (or cross claimant) under UCPR 13.4. Summary Dismissal: Frivolous or Vexatious Proceedings – UCPR r 13.4: (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings— (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).

Van Der Lee v NSW [2002] - NSW brought a crossclaim against Lend Lease after Thredbo landslides. Land Lease claimed that the purpose of the cross claim was not to recover damages, contribution or indemnity, but to compel Lend Lease to contribute to settlement claims. - The court held that brining the cross claim was not necessarily an abuse of process – it was not done for “collateral advantage” or obtain a benefit “not reasonably related”. Consequently, Lend Lease did not discharge the onus.

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Fawcett v Cannon [2007] - Cannon placed a firework in a tube and expected it to launch, but it did not and caused extensive injury to Fawcett. - Fawcett sued Cannon, the occupiers of the land, the retailed of the fireworks, and the wholesale supplier of the fireworks. It was alleged that the wholesaler was one or more of several Schofield companies. - The Schofield companies moved to dismiss proceedings, which was denied. - Abuse of process involves either 1) invoking the court’s procedures for illegitimate purpose, 2) the use of the court’s procedures is unjustifiably oppressive, or 3) the use of the court’s procedures would bring the administration of justice into disrepute. - It must be clear to the court that the grounds for summary dismissal have been satisfied in the particular case, not just strong evidence against the case. Despite a summary dismissal, a plaintiff can still bring fresh proceedings – CPA s 91(1) – or appeal to the Court of Appeal (for orders made in District or Supreme Court), or to the Supreme Court (for orders made in Local Court). The standard for summary judgment and summary dismissal in the Federal Court is that there must be “no reasonable prospect of success” on the defence or claim (Federal Court of Australia Act 1976 (Cth) s 31A). Discontinuance Discontinuance – UCPR r 12.1: (1) The plaintiff in any proceedings may, by filing a notice of discontinuance, discontinue the proceedings, either as to all claims for relief or as to all claims for relief so far as they concern a particular defendant— (a) with the consent of each other active party in the proceedings, or (b) with the leave of the court. Effect of Discontinuance – UCPR r 12.3: (1) A discontinuance of proceedings with respect to a plaintiff’s claim for relief does not prevent the plaintiff from claiming the same relief in fresh proceedings. (2) Subrule (1) is subject to the terms of any consent to the discontinuance or of any leave to discontinue. Plaintiff to Pay Costs if Discontinue – UCPR r 42.19: (1) This rule applies to proceedings that are discontinued by the plaintiff, as referred to in rule 12.1. (2) Unless the court orders otherwise or the notice referred to in rule 12.1(2) otherwise provides, the plaintiff must pay such of the defendant’s costs as, at the date on which the notice of discontinuance was filed, had been incurred by the defendant in relation to each claim in respect of which the proceedings have been discontinued. Stay on Further Proceedings if Plaintiff is Still Liable for Costs – UCPR r 12.4: If— (a) as a consequence of the discontinuance of proceedings, a plaintiff is liable to pay the costs of another party in relation to those proceedings, and (b) before payment of the costs, the plaintiff commences further proceedings against that other party on the same or substantially the same cause of action as that on which the former proceedings were commenced, the court may stay the further proceedings until those costs are paid and may make such consequential orders as it thinks fit. 53

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Discontinuance is normally allowed where there is no injustices to the other party. In refiling, the defence may be able to raise a defence of res judicata or issue estoppel, and must be made within any limitations period. A party may withdraw notice of appearance with leave of the court – UCRP r 12.5 – and a party raising any matter in a defence or subsequent pleading may withdraw the matter at any time – r 12.6(1). Summary Disposition & Purposes of Court Procedure: balancing “just, cheap and quick” Summary disposition is “cheap” and “quick” but does not sit well with “just” and the right to a fair hearing (audi alteram partem – hear the other side). Hence every summary disposition decision involves balancing competing objectives of efficiency and the right to be heard. Summary disposition also prevents the courts becoming clogged with unmeritorious litigation (thereby improving access), but also denies those parties a hearing (thereby denying access).

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Settlement Offers of Compromise Offers of Compromise – UCPR r 20.26: Making an Offer (1) In any proceedings, any party may, by notice in writing, make an offer to any other party to compromise any claim in the proceedings, either in whole or in part, on specified terms. Requirements of an Offer (2) An offer under this rule— (a) must identify— (i) the claim or part of the claim to which it relates, and (ii) the proposed orders for disposal of the claim or part of the claim, including, if a monetary judgment is proposed, the amount of that monetary judgment, and (b) if the offer relates only to part of a claim in the proceedings, must include a statement— (i) in the case of an offer by the plaintiff, as to whether the balance of the proceedings is to be abandoned or pursued, or (ii) in the case of an offer by a defendant, as to whether the balance of the proceedings will be defended or conceded, and (c) must not include an amount for costs and must not be expressed to be inclusive of costs, and (d) must bear a statement to the effect that the offer is made in accordance with these rules, and (e) if the offeror has made or been ordered to make an interim payment to the offeree, must state whether or not the offer is in addition to that interim payment, and (f) must specify the period of time within which the offer is open for acceptance. Exceptions (3) An offer under this rule may propose— (a) a judgment in favour of the defendant— (i) with no order as to costs, or (ii) despite subrule (2)(c), with a term of the offer that the defendant will pay to the plaintiff a specified sum in respect of the plaintiff’s costs, or (b) that the costs as agreed or assessed up to the time the offer was made will be paid by the offeror, or (c) that the costs as agreed or assessed on the ordinary basis or on the indemnity basis will be met out of a specified estate, notional estate or fund identified in the offer. Not Giving Particulars of the Offeror’s Claim (4) If the offeror makes an offer before the offeree has been given such particulars of the offeror’s claim, and copies or originals of such documents available to the offeror, as are necessary to enable the offeree to fully consider the offer, the offeree may, within 14 days of receiving the offer, give notice to the offeror that— (a) the offeree is unable to assess the reasonableness of the offer because of the lack of particulars or documents, and (b) in the event that rule 42.14 applies to the proceedings, the offeree will seek an order of the court under rule 42.14(2).

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LAWS1014 Civil Procedure Notes (2020)

Time Period of Acceptance (5) The closing date for acceptance of an offer— (a) in the case of an offer made two months or more before the date set down for commencement of the trial—is to be no less than 28 days after the date on which the offer is made, and (b) in any other case—is to be such date as is reasonable in the circumstances. Time Period to Fulfil Requirements of an Offer After Acceptance (8) Unless the notice of offer otherwise provides, an offer providing for the payment of money, or the doing of any other act, is taken to provide for the payment of that money, or the doing of that act, within 28 days after acceptance of the offer. Offer Made without Prejudice (i.e., no admission) (9) An offer is taken to have been made without prejudice, unless the notice of offer otherwise provides. May Make Multiple Offers (10) A party may make more than one offer in relation to the same claim. Withrawing an Offer (11) Unless the court orders otherwise, an offer may not be withdrawn during the period of acceptance for the offer. Offers Cannot Modify or Restrict Cost Consequences (12) A notice of offer that purports to exclude, modify or restrict the operation of rule 42.14 or 42.15 is of no effect for the purposes of this Division. Acceptance of an Offer – UCPR r 20.27: (1) A party may accept an offer by serving written notice of acceptance on the offeror at any time during the period of acceptance for the offer. [Time Period r 20.26(5) above] (2) An offer may be accepted even if a further offer is made during the period of acceptance for the first offer. (3) If an offer is accepted in accordance with this rule, any party to the compromise may apply for judgment to be entered accordingly. Withdrawal of Acceptance – UCPR r 20.28: (1) A party who accepts an offer may withdraw the acceptance in any of the following circumstances by serving written notice of withdrawal on the offeror— (a) if the offer provides for payment of money, or the doing of any other act, and the sum is not paid to the offeree or into court, or the act is not done, within 28 days after acceptance of the offer or within such other time as the offer provides, or (b) if the court grants the party leave to withdraw the acceptance. (2) If acceptance of an offer is withdrawn— (a) except as provided by paragraph (b), all steps in the proceedings that have been taken as a consequence of the offer having been accepted cease to have effect, and (b) the court may give directions— (i) to restore the parties as nearly as may be to their positions at the time of the acceptance, and (ii) to give effect to any steps in the proceedings that have been taken as a consequence of the offer having been accepted, and (iii) to provide for the further conduct of the proceedings, and may do so either after the offer is withdrawn or when granting leave to withdraw the offer.

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LAWS1014 Civil Procedure Notes (2020)

Failure to Comply with an Accepted Offer – UCPR r 20.29: (1) If the plaintiff, being a party to an accepted offer, fails to comply with the terms of the offer, the defendant is entitled— (a) to such judgment or order as is appropriate to give effect to the terms of the accepted offer, or (b) to an order that the proceedings be dismissed, and to judgment accordingly, as the defendant elects, unless the court orders otherwise. (2) If the defendant, being a party to an accepted offer, fails to comply with the terms of the offer, the plaintiff is entitled— (a) to such judgment or order as is appropriate to give effect to the terms of the accepted offer, or (b) to an order that the defence be struck out, and to judgment accordingly, as the plaintiff elects, unless the court orders otherwise. … Disclosure of Offer to Court by Arbitrator – UCPR r 20.30: (1) No statement of the fact that an offer has been made may be contained in any pleading or affidavit. (2) If an offer is not accepted, no communication with respect to the offer may be made to the court at the trial or, as the case may require, to the arbitrator. (3) Despite subrule (2), an offer may be disclosed to the court or, as the case may require, to the arbitrator— (a) if a notice of offer provides that the offer is not made without prejudice, or (b) to the extent necessary to enable the offer to be taken into account for the purpose of determining an amount of interest up to judgment, or (c) after all questions of liability and relief have been determined, to the extent necessary to determine questions as to costs, or (d) to the extent necessary to enable the offer to be taken into account for the purposes of section 73(4) of the Motor Accidents Act 1988, section 137(4) of the Motor Accidents Compensation Act 1999 or section 151M of the Workers Compensation Act 1987. Note also Privilege: CPA ss 29, 30(4) and Evidence Act s 131(2)(h): - Evidence of an offer arising from court annexed mediation may be given to give force to an offer (CPA s 29), and anything else arising from the medi...