CPA Notes brief PDF

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Brief bullet point notes on the legislation and cases...

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Civil Procedure (NSW and Cth) State

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Federal

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Court Acts

Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Court practice notes created by judges in accordance with power granted by UCPR and CPA Federal Court Rules 2011 (Cth) Federal Court of Australia Act 1976 (Cth) Supreme Court Act 1970 District Court Act 1973 Local Court Act 2007

CPA: s 71: Business in the absence of the public Court Suppression and Non-Publication Orders Act 2010 s 6,7, 8 CPA s 56: Overriding purpose Costs: s 98 CPA: Costs at the discretion of the Court. McLaughlin v Dungowan Manly Pty Limited [2010]

ADR Offers to compromise: UCPR 20.26, 42.13-42.17 Calderbank letters: Stewart v Atco [No 2] [2014]. Walkaway offer can be genuine offer: Leichardt MC v Green [2004] Mediation: • S 26 – Referral by court to mediation with or without consent of the parties • 27 – Duty of parties to participate ‘in good faith’ • 28 – Costs payable as per court order or as agreed between parties • 29 – Court orders giving effect to agreements/arrangements arising out of mediation • 31 – Circumstances in which mediator may disclose information • Confidentiality: Misconduct may not remain confidential: Mullins v Legal Services Commissioner Arbitration • CPA s 38 – Referral of proceedings to arbitration • CPA s 39 – Nature of determination by the arbitrator • CPA s 42 – Party aggrieved by award may apply for a rehearing • Commercial Arbitration Act 2010 (NSW) – part of uniform arbitration leg in AUS • International Arbitration Act 1974 (Cth) • Larkden v Lloyd Energy Systems Pty Ltd [2011] NSWSC: most matters suitable • •

Pre-litigation protocols • Civil Dispute Resolution Act 2011 (Cth) (in operation since July 2011) – requires parties to file “genuine steps” statement. • Part 28 Federal Court Rules 2011 (Cth) includes Division 28.1 positive obligation to consider ADR and court support. • Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys [2012] FCA 282 - failure to take genuine steps • Auss Metals Pty Ltd v Express Mobile Services Australia Pty Ltd [2015] FCA 745 – failure to take genuine steps Limitation Periods Substantive law: John Pfeiffer Pty Ltd v Rogerson [2000] HCA Brisbane South Regional HA v Taylor (1996) Rationale for limitation periods Limitation Act 1969 (NSW) Do Comparison chart of ADR v Litigation (really CAA v CPA )

Case management Provided for in Part 6 of the Civil Procedure Act 2005 (NSW) Provided for in Part 2 of the Uniform Civil Procedure Rules 2005 (NSW) UCPR 2.3 List of matters over which courts have discretion ERA v Armstrong (2013) Aon v ANU (2009) QLD v JL Holdings (1997) (overruled by AON v ANU) • • • • •

S56 overriding purpose “just, quick and cheap” S57 ”objects” of case management “just determination”, “resource efficient”, “timely” and “affordable”. i.e. “just, quick and cheap”. S58 dictates of justice (i.e. Just) S59 elimination of delay (i.e. Quick) S60 proportionality of cost (i.e. Cheap)

Division 2: Directions Powers Division 3: Powers to amend (s64), adjourn or stay (s66, s67), produce and more Division 6: miscellaneous: s86 court power to make or withdraw any order by application or by its own motion. UCPR 2.1 Directions and orders Proportionality of costs • UCPR r 42.4: Power to cap costs • CPA s 98(4)(c) global costs Calculating financial costs • CPA s 98 Courts power as to costs • UCPR r 42.1: Costs generally follow the event Jurisdiction • Jurisdiction of Courts (Cross Vesting Act) 1987 • Local Court: s 29 LCA 2007 • District Court: s 44 DCA 1973 • Supreme Court: s 23 SCA 1970 • Equity: s 134 District Court Act • Federal Court– conferral of jurisdiction by statute: Federal Court of Australia Act 1976 s 19 • Family Court: Family Law Act 1975 s 31 • State courts exercising federal jurisdiction: Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) • Procedural laws of State court will apply: lex fori • Federal courts can’t exercise state jurisdiction: • Re Wakim; ex parte McNally (1999) 198 CLR 511 Commencing proceedings • Person serving completes affidavit of service: r 35.8 • Definition of originating process s 3 CPA • Statement of claim UCPR r 6.3 • Summons UCPR r 6.4 • Fees for commencing proceedings: o Civil Procedure Regulation 2017 (NSW) o Federal Court and Federal Magistrates Court Regulation 2012 (Cth) • Relief claimed (contents of SOC/Summons) UCPR 6.1 • Importance of service: Agar v Hyde [2000] HCA

Methods of service • • • • •

Personal service UCPR r10.20 and r10.21 Various methods of service 10.5 Service by agreement 10.6 Acceptance by solicitor 10.13 Substituted service – 10.14

When to serve: • As soon as practicable: UCPR r 10.1(1) • Within 6 months (all SC, all LC and DC outside NSW,) 1 month (DC local) or: UCPR r 6.2(4) • UCPR r 1.12 Extension and abridgment of time • Pell v Hodges [2007] NSWCA Personal service • UCPR: 10.20: - Required for originating process, garnishee orders, orders for examination and subpoenas (UCPR Rule 33.5). • UCPR: 10.21 - How is personal service affected? • Corporations can be served by postage to a registered office per s109X (1)(a) of the Corporations Act 2001 (Cth) • Subpoenas required to be served personally 33.5 – Nash v Stewart [2010] Proving service: • Affidavit of service UCPR r35.8 Appearance • Conditional appearance Mentyn v Falcone; Mentyn v Pearce [2004] TASSC 92. • Submitting appearance Evergreen Tours P/L v McLaren [2010] NSWSC 1362. • D must file notice of appearance within 28 days: UCPR r 6.10 • D wishes to object > notice of motion without entering appearance UCPR r 12.11 • Ghosh v Ninemsn Pty Limited [2014] NSWCA 121

Pleadings ▪ ▪ ▪ ▪

Part 14 UCPR Defence to be filed within 28 days of service of SOC UCPR 14.3 Purpose of pleadings: ACCC v Australialink Pty Ltd (No 3) [2009] Must plead facts not evidence: UCPR 14.7

Drafting pleadings • Form – numbered paragraphs: r14.6 • As brief as possible: r14.8 • Material facts not evidence: r14.7 • References in pleadings to documents and spoken words: r14.9 • Pleadings to be consistent as to allegations of fact – r14.18 • Pleadings may raise a point of law – r14.19 • Verification – r14.22 and r14.23 No surprises • UCPR 14.14 D: Failure to traverse = admission rule 14.26 Particulars • Provide all necessary particulars: UCPR 15.1 • Any particulars necessary to identify case pleaded (r15.1) • Particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence (r15.3) • Particulars of facts and circumstances constituting negligence and breach of statutory duty (r15.5) • Obtain a court order for them to be provided –UCPR r15.10. • Amendment: Court can direct mode and timeframe (UCPR 19.6) • UCPR 19 – amendment without leave of court 19.1 Power to amend • Power to amend in s 64 of CPA • Power to amend UCPR Part 19 • Court has broad discretion to allow amendments as justice requires, subject to: • Overriding purpose of efficiency (s 56 CPA) • Prejudice • Costs/ adjournment (UCPR r42.6 costs) • Mode of amendment 19.5 and 19.6 Notice to admit • To admit specified facts for the purposes of the proceedings only (UCPR 17.3), or • To admit the authenticity of specified documents (UCPR 17.4). • Liao v NSW [2014] Presumed admission • UCPR 17.3(2) and 17.4(2) •

Defective pleadings o Pleadings (whole or part) may be struck out (UCPR 14.28) o Summary judgment or dismissal can be ordered - UCPR 13.1 and 13.4 o Director Of The Fair Work Building Industry Inspectorate v Construction, Forestry, Mining And Energy Union & Ors (No.2) [2016] FCCA

Representative actions • CPA ss 155-184 • S 159 opt out class action • S 157: requires 7 or more individuals • Johnston v Endeavour Energy [2015] Preliminary discovery • Who to sue (unknown defendant UCPR Rule 5.2); or • Where to serve claim (location of defendant unknown UCPR Rule 5.2); or • Whether it is worth commencing proceedings (value of claim uncertain or defendant may be impecunious and not worth suing UCPR Rule 5.3). Originating process •

CPA s 3: definition

SERVICE Personal service • Personally serving principal officer of corporation: r 10.22 • Company’s registered office: Corporations Act 2001 (Cth) s 109X(1)(a) • Leaving at place where business carried out: rr 10.9, 10.10, 10,20 • 10.6. Service in accordance with agreement between parties (e.g. contractually agreed) Service outside jurisdiction • Interstate within Australia: • Service and Execution of Process Act 1992 (Cth) SEPA • S15 (1) “An initiating process issued in a State may be served in another State.” • Overseas out of Australia: • UCPR Part 11. • UCPR r11.2: OS service as prescribed by Schedule 6 • UCPR r11.3: Notice to defendant on originating process • UCPR r11.4: Pl needs Court’s leave to proceed if Defendant doesn’t appear (i.e. default judgment harder) Substituted service • UCPR 10.14 Subsisted and informal service generally • Bulldogs Rugby League Club v Williams [2008] – efforts at personal service unsuccessful • Flo Rida v Mothership Music Pty Ltd [2013] NSWCA • Purpose of service: United Group Resources v Calabro [2010] No 4 Frivolous and vexatious proceedings • UCPR 13.4 • Abuse of process: Ashby v Cth (No. 4) [2012] and Ashby v Slipper [2014] • Not in correct form [UCPR r 14.5] • Plead evidence [UCPR r 14.7] • Not specific or brief [UCPR r 14.14/14.8] • Inconsistent allegations of fact [UCPR r 14.18] • No reasonable cause of action [UCPR r 14.28] • Prejudice, embarrassment or delay [UCPR r 14.28] • Abuse of Process [UCPR r 14.28] • No reasonable cause of action [UCPR r 13.4] • Frivolous [UCPR r 13.4]; • Vexatious [UCPR r 13.4] • Abuse of process [UCPR r 13.4] • Hopeless pleadings: Donaldson v Cth of Australia [2011] NSWSC

Discovery Discovery process • Party A files notice of motion seeking discovery under rule 21.2 – motion served • Hearing of notice of motion. Court orders discovery – rule 21.2 • Party B makes list – rule 21.3 • Party B provides affidavit and solicitor makes certificate – rule 21.4 Orders for discovery • UCPR 21.2(1) specific • UCPR 21.2(2) general discovery • How are classes of documents specified: UCPR 21.2(3) • Ashton v Pratt [2010] classes and categories of discovery Method of giving discovery • List of documents [21.3] • In possession; within 6 months prior to commencement were in possession • Brief description (nature and date) [21.3(2) (b)] • Specify person believed to be in possession [(c)] • Identify any privileged documents and the circumstances said to give rise to the privilege [(d)] Excluded documents • 21.3(1): documents do not need to be included in list of documents • 21.1 definitions of excluded documents Supporting documents • UCPR 21.4(1): required a supporting affidavit and a solicitors certificate of advice (if with a solicitor) • UCPR 21.4(2) what the documents state and their purpose Access to documents: • UCPR 21.5 Continuing obligation to give discovery • UCPR 21.6 Non-disclosure of discovered documents in other proceedings • UCPR 21.7

Laws that determine privilege Evidence Act 1995 (NSW)

CPA

UCPR

Objections to production on grounds of privilege • UCPR 1.9 • “Privileged document’ or ‘privileged information’ is used in UCPR 5.7, 21.5, 21.6, 21.11 and 22.3 Client- legal privilege • Legal Advice Privilege (s118 Evidence Act) • Litigation Privilege (s119 Evidence Act) • Definition of client in s 117 Evidence Act Evidence Act • S 117 – definitions • Ss 118 and 119 – client legal privilege: legal advice privilege and litigation privilege • Ss 120 – unrepresented parties • Ss 121 –126 – loss of privilege

Loss of privilege • It would prevent enforcing of court order – s 121(2) Evidence Act • Waiver of Privilege s 122 • Defendants in criminal cases s 123 • Joint civil clients s 124 Evidence Act • Misconduct (fraud) s 125 • Related communications/docs are disclosed- s126 Waiver of privilege • Waiver by intentional disclosure: Osland v Secretary to the Dept of Justice [2008] HCA • Inadvertent waiver: ERA v Armstrong [2013] • Timothy Mills v Walter Wojcech [2011] NSWSC: no privilege Negotiations privilege • S 131 Evidence Act • S 131(2) not applicable in certain circumstances e.g. parties consent • Field v Commissioner for Railways (1957) – application of negotiations privilege – denied • Verge v Devere Holdings [2009] limitations Privilege in mediation session • S 25 mediation session • S 30 (4) evidence in mediation session not admissible Public interest immunity • S 130 Evidence Act • Matter of state s 130(4) • Balancing exercise s 130(1) • Factors for the court to take into account s 130(5) • Grant waiver s 130(2)

Other documentary evidence Subpoena • UCPR 33.1-33.2 • Must be personally served UCPR 33.5 • Issued through court registry UCPR 33.2 • Compliance: UCPR 33.6 – deliver a copy for subpoena to produce • Must comply unless not served in time UCPR 33.6 • Failure to comply > contempt of court UCPR 33.12 • Order to set aside UCPR 33.4 Inspection of documents • Court can give directions about access and inspection UCPR 33.8 • Party may object to inspection (privilege claim) UCPR 33.9 Notice to produce • Produce documents for inspection: UCPR 21.9-21.2 • Notice to produce documents to the court at a hearing: UCPR 34.1-34.2 • Unless the court orders otherwise party B must comply with a notice to produce: UCPR 21.11 and 34.2. • Federal Court Rules 2011 (Cth) Notice to produce must be complied with Rule 30.28

Interrogatories The court may order any party to answer specified interrogatories at any stage of the proceedings. (Rule 22.1). Party may object if irrelevant, vexatious, oppressive or privilege claim. (Rule 22.2) Parties may tender one or more answers to interrogatories as evidence (Rule 22.6). Notice of motion Interlocutory or other application made by motion UCPR 18.1 UCPR 18.2 (1) Contents of notice of motion: 18.3 Stay of proceedings CPA s 67: court may stay proceedings, either perm or until specified time Security for costs CPA s98 – Court has total discretion on costs. CPA s60 – Costs should be proportional. UCPR 42.21 – making sure loser can pay Special Interlocutories – preservation orders Practice Note SC Gen 14 – Freezing orders Practice Note SC Gen 13 – Search orders UCPR Part 25 Search Orders Requirements for grant of a search order UCPR 25.20 Court must appoint ‘independent solicitors’ to supervise search orders [rule 25.23] ‘Usual undertaking as to damages’ [Rule 25.8] Freezing Orders Good arguable case r 25.14 Default judgment When is the defendant in default: UCPR 16.2 Procedure where defendant in default: UCPR 16.3(1) Setting aside default judgement Power to set aside: 26.16(2) Plaintiff can apply for summary judgment against a defendant under UCPR 13.1 Summary judgment may be set aside by the court that ordered summary judgment under UCPR 36.15 or 36.16 (by notice of motion) Summary dismissal Defendant (or cross-defendant) can apply for summary dismissal against a plaintiff (or cross claimant) under UCPR 13.4 Summary dismissal can bring fresh proceedings (see s 91 of CPA) Want of prosecution/inactivity (UCPR 12.7 can be entirely procedural, mere passage of time can trigger dismissal) Defective pleadings (UCPR 13.1/14.28 –see seminar 4) Frivolous and vexatious proceedings (UCPR 13.4 requires prima facie consideration of case). Proceedings an abuse of process (either through UCPR 13.4 –frivolous and vexation or common law) Dismissal for inactivity: only applies to the SC: UCPR 12.8 Dismissal for inactivity: applies to DC and LC UCPR 12.9

Discontinuance UCPR 12.1, 12.3 and 12.4 Plaintiff can discontinue all or part of claim by filing a notice of discontinuance (UCPR 12.1) - Must be by consent of parties OR leave or court. Effect of discontinuance > Plaintiff can file fresh proceedings (UCPR 12.3) Effective of discontinuance > But fresh proceedings can be stayed to secure costs of earlier discontinued proceedings (UCPR 12.4) Trial If no summary dismissal/settlement then the matter goes to trial UCPR Part 29 UCPR 29.4 Trial to deal with all questions and issues UCPR 29.5 Conduct of trials generally UCPR 29.1 Beginning and opposite parties UCPR R 29.6 Order of evidence and addresses - order of presentation of the addresses and evidence Defendant wins without a trial Want of prosecution/inactivity (UCPR 12.7; UCPR 12.8; UCPR 12.9) Defective pleadings (UCPR 13.1/14.28) Frivolous and vexatious proceedings (UCPR 13.4). Proceedings an abuse of process (either through UCPR 13.4 or common law). Plaintiff wins without a trial The plaintiff does not have to demonstrate the strength of their case nor the lack of defence for default judgment (UCPR 16) but does for summary judgment (UCPR 13.1) Appeals UCPR Part 50 and 51 S 101 Supreme Court Act re limits on appeal as of right: need to seek leave Appeals to HC – special leave requirements – Judiciary Act 1903 (Cth) s 35 Enforcement interstate SEPA 1992 s 105 automatic registration of a judgment from one AUS jurisdiction to another Enforcement OS Foreign Judgments Act 1991 (FJA) s 12 general effect of certain judgments International Arbitration Act 1974 Enforcement proceedings Civil Procedure Act Part 8: Enforcement of Judgments and Orders S 106 Judgments for payment of money (cf Act No 9 1973, section 109; Act No 8 1901, sections 4 and 5) 105 Judgments for delivery of goods 104 Judgments for possession of land Division 1 Enforcement of writs of execution generally: Rule 39.1-39.20 Division 2 Enforcement of writs against land: Rule 39.21-39.28 Division 3 Enforcement of writs against goods etc: Rule 39.29-39.33 Division 4 Garnishee Orders: Rule 39.34-39.43 Division 5 Charging Orders: Rule 39.44-39.45

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