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SUBJECT OUTLINE 70104 Civil Practice Course area

UTS: Law

Delivery

Autumn 2019; City

Credit points 6cp Requisite(s)

70616c Australian Constitutional Law These requisites may not apply to students in certain courses. There are also course requisites for this subject. See access conditions.

Result type

Grade and marks

Subject coordinator Dr Brett Heino Room: CM05B.546 Telephone: 9514 5480 Email: [email protected] ____________________________

Teaching staff Dr Brett Heino Email: [email protected] _____________________________ TUTORS Maria Abertos Email: [email protected] Kay Maxwell Email: [email protected] Benjamin Salon Email: [email protected] Navid Sedaghati Email: [email protected] Keith Williams Email: [email protected] _____________________________

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Subject description This subject deals with the application of civil practice in New South Wales and enables students to understand the legal and ethical context in which lawyers operate within the civil jurisdiction. Areas of study follow the interpretation and application of civil practice governed by the Civil Procedure Act 2005 (NSW) (CPA) and the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The CPA and UCPR form the framework for case management in the Supreme, District and Local courts. The subject follows the scope of the CPA and UCPR, including the resolution and settlement of disputes, the commencement of proceedings, representation and advocacy, the drafting and filing of documents, service, interlocutory applications and resolution, including alternative processes for dispute resolution. The legislation gives power to judicial officers to direct the business of the court and caseload-manage all matters, and to direct the parties as to the management of their individual case. Statute is supported by relevant case law. Three of the significant results of the uniform civil procedure regime that students work with are the: 1. increased resolution of disputes through non-adversarial processes 2. more active role of the courts in the conduct of proceedings 3. additional roles and duties of legal practitioners acting for parties in civil disputes. Civil practice forms a core subject for all law degrees in Australia. It is one of the four topics assessed in the NSW Bar Exam (along with Criminal Procedure, Evidence and Ethics). For this reason, lectures and tutorials feature practical examples and insights into the professional and ethical obligations of civil practitioners. Students are given various opportunities to reflect on, discuss, present and self-assess their learning in this subject. The impact of technology on legal practice is also considered.

Subject learning objectives (SLOs) Upon successful completion of this subject students should be able to: 1. Identify the Rules and case law that inform how discretion is applied by the Courts during preparation for trial and case management; distinguish the different types of interests that drive a dispute; and engage in critical analysis, making reasoned choices amongst alternatives. 2. Evaluate the components and processes of ethical decision making and develop logical and justifiable arguments in a context of alternative modes of problem solving. 3. Generate ideas, make decisions and resolve conflicts, adopting different roles within a group dynamic as required including undertaking core leadership functions within a group discussion. 4. Communicate orally and in writing logically, succinctly and persuasively in civil practice and academic contexts. 5. Evaluate and reflect upon the role technology is playing in the changing landscape of civil practice in New South Wales.

Course intended learning outcomes (CILOs) This subject also contributes specifically to the development of the following graduate attributes which reflect the course intended learning outcomes: Ethics and Professional Responsibility A capacity to value and promote honesty, integrity, accountability, public service and ethical standards, including an understanding of approaches to ethical decision-making, the rules of professional responsibility and an ability to reflect upon and respond to ethical challenges in practice (LAW.2.0) Critical Analysis and Evaluation A capacity to think critically, strategically and creatively, including an ability to identify and articulate legal issues, apply reasoning and research, engage in critical analysis and make reasoned choices (LAW.3.0) Communication and Collaboration Effective and appropriate communication skills, including highly effective use of the English language, an ability to inform, analyse, report and persuade using an appropriate medium and message and an ability to respond appropriately (LAW.5.0)

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Teaching and learning strategies Strategy 1. Students’ Preparation for Learning: Students read cases, legislation and articles and listen to TedTalks, Nutshells and similar online resources to prepare for their participation in tutorial activities including collaborative discussion, mock negotiation, quizzes, games and drafting case notes. Strategy 2. Lectures: Lecturers and guest lecturers from practice engage students in challenging ideas about Civil Practice. Students are welcome and indeed encouraged to ask questions and challenge ideas during lectures. A hypothetical civil dispute is used to contextualize learning. Lectures are a key learning resource in this subject. They are recorded and available for student review. Strategy 3. Learning though Tutorial Discussion, Games & Simulations: Each week, students will engage in discussion and oral presentations (including reflective statements) on various aspects of civil practice and undertake games, simulations and exercises designed to assist in understanding civil practice processes, with immediate feedback. Strategy 4. Collaborative Problem Solving: All students will collaborate in problem solving exercises in the civil practice context, often divided into teams of plaintiffs and defendants so as to add authenticity to the way that civil practitioners prepare for litigation and engage in negotiation. Students will also develop their research and academic writing skills. Feedback will respond to students’ problem-solving strategies and modes of expression. Strategy 5. Online learning: UTS Online is where students access material for self-directed learning and engage in student-led discussion on key topics. Recorded lectures are available for review on UTS Online. Students to share their questions and ideas on the open discussion forum (UTS Online), with prompt guidance and feedback from the Subject Coordinator. Strategy 6. Ongoing Feedback: Structured feedback is provided individually, to each tutorial and to the subject group about weekly tutorial activities, formative assessment tasks, self-assessment tasks and oral presentations, as well as formal assessments. There will be opportunities to receive immediate feedback, particularly responding to students’ understanding of how the Rules inform lawyers’ professional obligations and guide the exercise of judicial discretion. Detailed guidance as to the assessment criteria and the provision of timely feedback will form an important part of the learning process. Subject Delivery Civil Practice is delivered by way of preparatory activities, lectures, tutorials and discussion via UTS Online: Preparation for classes is approximately 20 minutes per week plus selected readings and starts in week 1. Weekly lectures commence in week 2. Lectures 1 to 8 are two hours long. The ninth and final lecture is one hour long. The lectures are recorded and will be available via UTS Online. Weekly tutorials commence in week 3. There are eight 2 hour tutorials. The timetabled activities for this subject can be found on the UTS timetable online at http://timetable.uts.edu.au. Students enrolled in this subject can view their personalised timetabled in My Subject Activities online at https://mysubjects.uts.edu.au.

Content (topics) Introduction to Civil Procedure in NSW; Guiding Principles; Pre-litigation requirements; Alternative Dispute Resolution Litigation Technology; Facilitative Processes Commencing Litigation; Service of Originating Process Drafting Pleadings other Court Documents; Evidence in Proceedings Interlocutory Applications Summary Disposition; Vexatious Litigants Costs as a Means of Managing Litigation and Costs Orders Judgment Enforcement; Appeals

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Program Week/Session

Dates

Description

1

14 Mar

Preparation Week - no lectures in this subject Preparation: Activities will be announced via UTS Online.

2

21 Mar

Lecture 1 - 2 hours Introduction to Civil Procedure in NSW; Guiding Principles; Case Management and the Overriding Purpose Preparation: See Learning Guide for readings in Civil Procedure in New South Wales and other material. Weekly tutorial activities will be announced via UTS Online.

3

28 Mar

Lecture 2 - 2 hours (night-time lecture 1 hour) 1 hr: Technology Guest Lecture (day-time only) 1 hr: Access to Justice; Open Justice; Pre-litigation Steps and Client Care Preparation: See Learning Guide for readings in Civil Procedure in New South Wales and other material. Weekly tutorial activities will be announced via UTS Online.

4

4 Apr

Lecture 3 - 2 hours Alternative Dispute Resolution; Jurisdiction; Limitation Periods Preparation: See Learning Guide for readings in Civil Procedure in New South Wales and other material. Weekly tutorial activities will be announced via UTS Online.

5

11 Apr

Lecture 4 - 2 hours Initiating Proceedings; Commencing Litigation; Drafting Pleadings; Service Preparation: See Learning Guide for readings in Civil Procedure in New South Wales and other material. Weekly tutorial activities will be announced via UTS Online.

6

18 Apr

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7

25 Apr

No lecture - StuVac

8

2 May

No lecture - Independent learning

9

9 May

Lecture 5 - 2 hours Evidence in Proceedings Preparation: See Learning Guide for readings in Civil Procedure in New South Wales and other material. Weekly tutorial activities will be announced via UTS Online.

10

16 May

Lecture 6 - 2 hours Interlocutory Applications; Injunctions Preparation: See Learning Guide for readings in Civil Procedure in New South Wales and other material. Weekly tutorial activities will be announced via UTS Online.

11

23 May

Lecture 7 - 2 hours Costs as a Means of Managing Litigation; Costs Orders Preparation: See Learning Guide for readings in Civil Procedure in New South Wales and other material. Weekly tutorial activities will be announced via UTS Online.

12

30 May

Lecture 8 - 2 hours Strike Out; Summary Disposal; Vexatious Litigation Preparation: See Learning Guide for readings in Civil Procedure in New South Wales and other material. Weekly tutorial activities will be announced via UTS Online.

13

6 Jun

Lecture 9 - 1 hour Enforcing Judgments and Appeals Preparation: See Learning Guide for readings in Civil Procedure in New South Wales and other material. Weekly tutorial activities will be announced via UTS Online.

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15

13 Jun

Final assessment period

Assessment Assessment task 1: Civil Practice Essay Intent:

This assessment task will give students an opportunity to practise their critical analysis and evaluating skills and develop the content, style and quality of written legal argument expected of law graduates.

Objective(s): This task addresses the following subject learning objectives: 4 and 5 This task contributes specifically to the development of the following graduate attributes: LAW.2.0, LAW.3.0 and LAW.5.0 Weight:

30%

Task:

Students will develop an argument that responds to a question in contemporary Civil Practice, drawing on research and applying critical analysis and evaluating skills. A choice of essay questions will be provided in the Learning Guide (available on UTSOnline in the first week of semester). Self-assessment: Students also complete their own self-assessment of their essay. The self-assessment form has the same criteria as the marking feedback sheet. Students are invited to indicate their level of achievement against each of the assessment criteria. This is submitted with the essay and encourages students to consider the quality of their essay prior to submission. Students’ self-assessments will be returned to them with a version marked by their assessor. This will enable students to reflect on the quality of their self-assessment, in turn developing judgement of their work.

Length:

2000 words

Due:

Monday 6 May 2019 PLEASE NOTE: Draft Essay (min 1,000 words) due via Turnitin only by 6pm on Monday 8 April 2019. See also Further information.

Criteria:

Statement of argument and plan Identification of relevant issues in the context of the subject themes (the overriding purpose of the CPA, the impact of technology on legal practice and the ethical issues arising from the Rules). Application of rules and case law Development of a sustained argument Critical analysis, evaluation and original insight Reaching logical and supported conclusions Logical, succinct and persuasive academic writing and plain English expression Footnoting and bibliography in accordance with AGLC (4th edn) Timeliness of completion and submission. The assessment criteria feedback sheet will be provided in the Learning Guide. At the beginning of the semester, students will be given guidance as to how each of the criteria will be assessed and an opportunity to ask questions. Marked essays will be returned to students with a completed assessment criteria feedback sheet, so that students can readily ascertain the strengths and weaknesses in their research essay. A summary of all feedback given to students for the research essays will be provided to students before the final exam.

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Further The final essay is to be submitted as a Word document only through Turnitin. Penalties will apply for information: any late submission without excuse. A marking criteria feedback sheet is available in the Learning Guide for this subject. A self-assessment must be completed for this task and submitted with the essay. The self-assessment form is also provided in the Learning Guide.

Assessment task 2: Tutorials - Preparation, Participation and Presentations Intent:

With an emphasis on ethics and common sense, tutorials in this subject provide students with a low-risk environment in which to discuss, resolve and reflect on authentic professional problems and issues.

Objective(s): This task addresses the following subject learning objectives: 1, 2, 3, 4 and 5 This task contributes specifically to the development of the following graduate attributes: LAW.2.0, LAW.3.0 and LAW.5.0 Weight:

30%

Task:

Students are required to prepare for and participate in tutorial activities, discussions and problem solving exercises. A programme of tutorial activities will be provided in the Learning Guide via UTS Online at the beginning of semester that includes: Preparation - students receive weekly announcements about the following week’s tutorial preparation. Students are required to prepare for each tutorial by doing the readings and preparing responses to the discussion questions. Average preparation time for tutorials will be 20 minutes. Participation - each week there will be opportunities for participation, as well as an in-class negotiation exercise that will be undertaken towards the end of the semester. Given the focus of alternative dispute resolution in civil practice, the theory and structure of negotiation forms a key component of the tutorial. Attendance without active contribution is not sufficient to pass this component. Presentations – students will present to the class the ideas and solutions generated during regular collaborative discussion sessions. Reflective Statement / Lightning Talk / Case Note - to improve their class participation mark students can conduct and present a once-only reflection activity for a maximum of two minutes in class. If students are unable to attend a tutorial, the relevant materials will be available at the end of each week in the Tutorial Folder via UTS Online.

Length:

Weekly contributions.

Due:

Weekly throughout semester (as advised via UTS Online).

Criteria:

1. Preparation, Participation, Informal Presentation: Preparation for each tutorial; Regular and active participation in tutorials Collaborative engagement in discussions and problem solving exercises; generating ideas, making decisions, resolving conflicts, adopting various roles and undertaking core leadership functions within a group discussion Giving and receiving effective feedback on contributions and collaborative encounters Logical, succinct and persuasive oral presentation of findings and arguments to the class, often on behalf of their discussion group

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Identification of relevant issues in the context of the subject themes (the overriding purpose of the CPA, the impact of technology on legal practice and the ethical issues arising from the Rules). The total possible mark for preparation, participation and informal presentation is 20% of the final mark in this subject. Students will receive feedback during each tutorial, particularly in relation to the way that activities were undertaken and the outcomes achieved by discussion groups and the class as a whole. 2. Self-assessment: Students submit to their tutor a completed self-assessment form reflecting on the quality of their engagement with this assessment task, in accordance with the tutorial criteria above. 3. Presentation of a Reflective Statement/ Lightning Talk / Case Note: Clarity of description of reflection and understanding Reflection on how learning in this subject has been informed Articulate well-paced presentation Identification of Law Graduate Attributes targeted in this activity. The total possible mark for presentation of a Reflective Statement/ Lightning Talk/ Case Note is 10% of the final mark in this subject. The Reflective Statement/ Lighting Talk/ Case Note feedback form is provided at the beginning of the semester in the Learning Guide and will be used by tutors to provide feedback immediately after the presentation. Further A self-assessment form is provided for this task in the Learning Guide. information:

Assessment task 3: Final Examination Intent:

The exam gives students an opportunity to demonstrate their mastery of the Rules. It also enables students to critically analyse and evaluate the subject themes in response to short answer questions.

Objective(s): This task addresses the following subject learning objectives: 1, 2, 4...