Jeremy\'s LAWS5215 Final Exam Notes PDF

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Summary Notes for Final Exam 2015 - pin points relevant UCPR rules and cases referred to in 2015 lectures. ...

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RUL RULE E5 The overriding obligation of parties and court is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense: r 5(1). An early ending of proceedings may advance r 5(1) and r 5(3). Proceedings can be ended early under r 16(e)(f) – See “Summary Judgment” below.

5 Philosophy—overriding obligations of parties and court (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. (3) In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way. (4) The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.

Im Impo po porta rta rtan nt Ca Case se con consi si sideri deri dering ng ru rule le 5 

Aon Risk Services v ANU (High Court approach) o At issue was whether ANU should be granted an adjournment of trial and leave to amend its statement of claim against Aon, when the parties were three days into a four week trial.  The primary judge granted the adjournment and granted leave to appeal.  The Court of Appeal dismissed Aon’s appeal against the primary judge’s orders, but ordered ANU pay Aon’s costs on the indemnity basis. o The High Court allowed Aon’s appeal against the decision of the Court of Appeal and ordered that ANU’s application for leave to amend its statement of claim be dismissed (per Gummow and Kiefel JJ). o Kiefel J had been the trial judge in Queensland v JL Holdings Pty Ltd who had refused to grant leave to amend the Defence, a decision upheld by the Full Federal Court but reversed by the High Court. o Rationale based on rule 5:  Public interest in expeditious litigation because wasting the courts time (public resource)  Just resolution the paramount purpose of r 5; but underscored by speed and efficiency and minimum delay as being necessary in proceedings as a matter of justice.  If there is specific, identified prejudice to that other party and where costs would not be a sufficient remedy, regardless of the broader interests of justice, the litigation will be ended early.

RE REMEMBER MEMBER TIME FOR STEP STEPS! S!  

r 7 – Court may extend or shorten time for any step in the proceeding. r 389 – if not step is taken for 1 year for from the time the last step was taken, must give one month’s notice to every party of the party’s intention to proceed.

EXAM TI EXAM TIPS PS – RE REMEMBER MEMBER W WHO HO YOU ARE INS INSTRUCT TRUCT TRUCTING ING 1. 2. 3. 4.

What is the client’s case? What does the client want to achieve? How can this be achieved by keeping costs within bound and achieving the outcome fairly and quickly? What legislation governs this set of facts before me?

INI INITI TI TIAL AL A ASSESSMENT SSESSMENT - JJURIS URIS URISDIC DIC DICTION TION In a civil proceeding the plaintiff’s first consideration is to choose the proper forum for litigating the dispute. Consider; ‘The authority a court has to decide matters that are litigated before it’ (Wardley Australia Ltd v Western Australia).

(1) Is the there re a matt matte er?   

A justiciable controversy concerning a right, duty or liability that must be decided by the court (Fencott v Muller). Must relate to the resolution of a dispute (Attorney General v Alinta). Where more than one issue arises out of the same set of facts (federal and non-federal claims), it can be treated as a single controversy (per Hayne and Gummow JJ in Wackham). See (5) Accrued Jurisdiction

(2) Wha Whatt iiss th the e su subjec bjec bjectt mat matte te ter? r? Which court has jurisdiction over the subject matter of the action? Jurisdiction Federal jurisdiction

State jurisdiction

Subject matter Constitution – s 76(i) Federal laws – s 76(ii) Treaty – s 75(i) Suits involving cth – s 75 (iii) Suits involving states – s 75(iv) ACL - Comp & Cons Act grants FCA jurisdiction to deal with ACL under s86 and s138 Corporations - where granted by an act of parliament Appeals Everything else (incl. common law… contract) Corporations - as Constitution doesn’t confer corporations power to HCA, but State’s have inherent jurisdiction, unless Act of parl gives FCA exclusive jurisdiction - excluded by s75 as not ‘residents’ State laws State appeals

(3) Fede Federa ra rall Ju Juri ri risdic sdic sdictio tio tion n 

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HCA o o FCA o o o o

Original jurisdiction is conferred by Constitution s 75 Parliament can confer extra jurisdiction under s 76 s 19 Federal Court Act grants FCA original jurisdiction as is vested by Parliament (must fall within a statutory head of power s 38 Judiciary Act determines matters which must be decided by HCA, subject to s 39B (therefore if inconsistency, goes to FCA). s 39B Judiciary Act lists matters which fall under FCA jurisdiction s 22 Federal Court Act grants FCA the power to issue any remedy it sees fit.

(4) Sta State te Juri Jurisdi sdi sdictio ctio ction n    

States have authority to adjudicate as conferred by state constitution and state laws (Baxter v Commissioner of Taxation). Every claim that doesn’t fall under federal jurisdiction (Baxter v Commissioner for Taxation). Must be a connection with that jurisdiction (Baxter v Commissioner for Taxation. ss 71, 77 Australian Constitution and s 39 Judiciary Act allow the full breadth of federal jurisdiction to be vested in the State courts (SC, DC, MC).

(4.1.) Connection with Territorial Jurisdiction 

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(4.1.1.) Capacity to serve originating process o Presence in jurisdiction (Laurie v Carroll) o Court will have jurisdiction over a person if they can serve that person with documents: ss 15, 16 Service and Execution Act (Cth).  Can be served interstate, serving rules still apply under s 15 Service of Execution and Process Act (Cth). (4.1.2.) Submitting to Jurisdiction by the Defendant o Filing ‘unconditional notice of intention to defend’ (UNOID o Express agreement in contract (4.1.3) Forum of Convenience o General rule for starting proceedings in r 35 UCPR:  (a) in the district in which the plaintiff or defendant lives  (d) in the district in which a defendant has agreed in writing to pay a debt or another amount  (e) in the district in which the claim or cause of action arose  (f) district in which land is located o See factors set out in “Transfer of Proceedings”

(4.2) Appropriate Court 

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(4.2.1.) Supreme Court o The Supreme Court has unlimited jurisdiction at law and in equity – it is termed a ‘superior court of record’. o It has whatever jurisdiction is necessary for the administration of justice in Queensland: s 58 Constitution of Queensland. (4.2.2) District Court o The District Court is a Court of Statutory jurisdiction – only has jurisdiction that is statutorily conferred upon it – termed ‘inferior court of statutory jurisdiction/record’. o The District Court has a civil jurisdiction up to a monetary value of $750,000 over those causes of action mentioned in s 68(2) of the District Court of Queensland Act 1967.  P can abandon excess: s 73 District Court Act (i.e. $850,000 claim, sue for $750,000 in MC). o If the causes of action falls within one of the s 68 heads, it can exercise SC power: s 69  (1) Grant relief  (2) Orders to effect the main dispute  (3) give effect to every defence and legal/equitable set-off  (4) Make declarations  (5) Grant interim, interlocutory or final injunction  (6) Stay proceedings (appoint receivers). (4.2.3.) Magistrates Court o The Magistrates Court is an ‘inferior court of statutory jurisdiction’. o The Magistrates Court has a civil jurisdiction over the causes of action and heads of relief prescribed in the Magistrates Court Act 1921 up to the monetary limit of $150,000 as stipulated in s 4.  P can abandon excess: s 5 Magistrate Courts Act  MC has no jurisdiction to try cases of title to land: s 7 Magistrates Court Act. The Uniform Civil Procedure Rules apply to each of the courts above: r 3.

(4.3) Transfer between Courts in Queensland     

If Magistrate Courts lack jurisdiction, can transfer to District Court: s 81 Magistrate Courts Act. If District Court lacks jurisdiction, can transfer to Supreme Court: s 85 District Courts Act District Court can remit to Magistrate Courts: s 78 District Courts Act Supreme Court can remit to District Court: s 77 District Courts Act. Supreme Court can transfer to District or Magistrates Court: s 25 Civil Proceedings Act.

(5) Cro Cross ss Vesti Vesting ng SSche che chem me  

A court must transfer a proceeding to the most appropriate court if the plaintiff commenced a proceeding in an inappropriate court: s 5 Jurisdiction of Courts (Cross-Vesting Act 1987. Per Gummow and Hayne JJ in Re Wakim; Ex pare McNally: o (1) Jurisdiction can be conferred as between states  i.e. NWS Supreme Court has the cross-vested jurisdiction to decide a matter where the cause of action arises under Queensland law. o (2) Jurisdiction for a state matter cannot be cross-vested from state to federal court because the general jurisdiction of the Federal Court and the Family Court cannot be enlarged  Federal jurisdiction is limited to the matters defined in ss 75, 76 Cth Constitution

(6) Tra Transf nsf nsfer er o off PProc roc rocee ee eedin din dinggs The second limb of the cross-vesting scheme is the requirement of the court to transfer a proceeding to a more appropriate court if the plaintiff sues in an inappropriate court. Transfers under s 5 of the Jurisdiction of Courts (Crossvesting) Act 1987 proceed on the basis that the proceeding was regularly commenced in a court that had jurisdiction as to the subject matter of the proceeding and personal jurisdiction over the defendant (BHP Billiton v Shultz). 

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Transfer of proceedings under the UCPR: o r 39 – change of venue by court order where in the “interest of justice” o r 40 - change of venue by agreement between the parties (consent order under r 666). The plaintiff’s choice of forum is merely on matter the court considers in deciding whether to transfer a proceeding to a more appropriate court, even if it was proper to sue in that jurisdiction (per Gummow J in BHP v Schultz). A court must order a transfer if: o (1) the proceeding arises out of or is related to a proceeding in the other court and it would be more appropriate for that other court to determine the mater; or o (2) having regard to:  (a) whether, except for cross-vesting, the proceeding in the first could would have been incapable of being instituted in the first court; and  (b) the extent to which the matters for determination arise under the laws of the Commonwealth or the State or Territory are not within the jurisdiction of the first court except for cross-vesting; and  (c) the interests of justice;  It is appropriate for the first court to transfer he proceeding to the other court; or o (3) it is otherwise in the interests of justice for the first court to transfer the proceeding to the other court: s 5. In transferring a proceeding in the interests of justice, the court must have regard to the interests of all the parties (per Gleeson CJ, McHugh and Heydon JJ in BHP Billiton Ltd v Schultz; Voth v Manildra Flour Mills setting out the ‘forum non-convenience test’). Factors to consider: o (1) Location where the cause of action arose o (2) Convenience o (3) Expense o (4) Availability/location of witnesses o (5) Location of the parties o (6) Location of the evidence and records o (6) Governing law of the transaction  Consider individual expertise of the judge’s  state court familiar with state law. o (8) Availability of adequate alternative forums

(6) A Acc cc ccru ru rued ed Juri Jurisd sd sdicti icti iction on   

Where matters of federal law and matters of state law arise out of a common substratum of facts, the federal jurisdiction will expand to include the matters of state law: s 22 Federal Court of Australia Act 1976 (Cth). The exercise of federal jurisdiction is mandatory, the exercise of accrued jurisdiction is discretionary (ASIC v Adensor). Federal jurisdiction is attracted only if the federal claim dominates the dispute (Fencott v Muller).

(7) JJoi oi oinde nde nderr o off Pa Parrtie tiess an and dC Cau au ause se sess o off Ac Action tion Question: Are all the parties necessary to enable the court to adjudicate effectively and completely on all matters in dispute included as a party to the proceedings (rule 62)?  

If Yes – Go to next section If No – A court cannot adjudicate a dispute unless it has before it all the parties to a dispute – Go to (5.1.)

(1.1.) Joining Plaintiffs  

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r 65 - D’s can be joined as co-defendants where common questions of law or fact arise in different trials (r 65(1)(a)), or they have a right to relief arising out of the same or series of transactions (r 65(1)(b). Cases: o Dean-Willcocks v Air Transit International – company liquidator could not join companies because the only connecting factor was preferential payments. o Cameron v National Mutual Life – co-plaintiff’s joined where D’s act damaged the plaintiffs – occupants in unit complex sued builder for negligent builder work. R 68 – separate trials are necessary where joining parties cases prejudice or delay. The court may; o (a) order separate trials o (b) award costs o (c) stay the proceeding against a defendant until the trial between the other parties is decided

(1.2.) Joining Defendants    

r 65 - D’s can be joined as co-defendants where common questions of law or fact arise in different trials (r 65(1)(a)), or they have a right to relief arising out of the same or series of transactions (r 65(1)(b). Joint Liability: o Number of parties all subject to the same obligation; if breached – only one cause of action. Concurrent Liability: o Where persons who acts concur to produce the same damage – only one cause of action (Baxter) Proportionate Liability: o Where claims are “apportionable” (claim for economic loss due to negligence of two or more concurrent D’s) – liability limited to D’s portion of damage per s 31 CLA.

(1.3.) Joining Causes of Action 

r 60 – several causes of action can be joined in a proceeding: o r 60(2)(a) - if a separate proceeding were brought for each cause of action, a common question of law or fact may arise in all the proceedings o r 60(2)(b) all rights to relief sought in the proceeding (whether joint, several or alternative) are in relation to, or arise out of, the same transaction or event or series of transactions or events

(1.4.) Changing the Parties 

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r 69 - P and D can be added or substituted after a proceeding commences when it becomes necessary to add parties whose presence is necessary to enable the Court to effectively and completely adjudicate on all maters in a dispute. Adding Plaintiffs: o Court may grant leave if: Dean Willocks v Air Transit International)  Unfairness to other party  Conducive to the just resolution of the dispute (cost/delay/evidence) Adding Defendants: o Court may grant leave if there is a prima facie case against the proposed D and it will help resolve all issues (Sharp v McGivney) o Proper to add D if:  D could not succeed against the P for summary judgment (Cooper)  D would be originally named as a D in the current proceeding (Vandervell Trustees v White). Other considerations: o r 71 – is the defendant/respondent dead at the start of proceeding? o r 72 – does the party become bankrupt, impaired capacity, dead during proceeding?

COMMEN COMMENCING CING PROCEED PROCEEDIN IN INGS GS Ste Steps ps in the PPro ro roce ce ceedi edi eding ng ngss STEP

TIME FOR TAKING STEP

1

Issuing and serving claim and Claim in force for service from one statement of claim. year after filing, unless time extended (r 24).

2

Serve defendant with claim

3

Notice of intention to defend and 28 days after service (r 23(b) -failure defence (r 137). to file NOID within time allows default judgment to be obtained)

4

Reply (r 162) and close of pleadings 14 days after service of defence. (r 169).

5

In a personal injury claim, plaintiff’s 28 days after close of pleadings. statement of loss and damage (r 547).

6

In a personal injury claim, 28 days after service of plaintiff’s defendant’s statement of expert and statement of loss and damage. economic evidence (r 550).

7

Disclosure of documents (r 214).

8

Reference to ADR (mediation) (r UCPR do not specify a time for 319). referral.

9

Completion of mediation (r 324).

28 days from mediator’s appointment.

10

Offer to settle (r 354).

Any time before final relief granted.

11

Directions (r 367).

No time specified.

12

Request for trial date (r 467).

Trial preparation completed. (r 469).

13

Trial

Date allocated by court

14

Appeal

28 days after date of judgment

15

Enforcing judgment

1 year from issue from court

28 days after close of pleadings.

(1 (1)) Limi Limita ta tatio tio tion n PPeri eri eriod od odss  

(1) See (specific) legislation creating cause of action; or (2) Limitations of Actions Act 1974 (Qld). o s 10 Contract/Tort (excluding personal injury) = 6 years  s 31 court can extend for 1 year o s 10AA Defamation = 1 year from publication o s 11 Personal Injury (negligence, trespass, nuisance, breach of duty) = 3 years  s 31 court can extend for 1 year o s 13 Recovery of Land = 12 years

(2) C Cla la laim/A im/A im/Ap ppli plica ca cation tion 

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r 8(1) – Proceedings start when the originating process is sealed and issued by the Court. o A claim is for factual disputes that are intended to go to trial. o An application is for disputes as to the law or where a substantial dispute of fact is unlikely r 9 - Proceeding must be started by claim unless the rules require or permit proceedings started by application. r 13 - Proceeding incorrectly started on claim may proceed as an application r 14 - Proceeding incorrectly started on application may proceed as a claim

(2.1) Claim  

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A claim must be in the approved form (r 22(1)) or it can be set aside (r 16(e)(f)). A plaintiff must: o Describe the parties (Cameron v National Mutual Life Association of Australasia Ltd (No 2)) o r 22(2)(a) - state the nature of the claim o r 22(b) - attach a statement of claim o r 22(3) - file and serve claim (see “Service” notes) o r 23 – include statement about filing notice of intention to defend claim and relevant time for filing o Form required: Form 2 Noncompliance: Substantial compliance is sufficient s 49(1) Acts Interpretation Act Wrong Form: where proceedings are started in the wrong form the court may order that the proceedings continue as if they had been commenced in the correct form, and make any further directors or orders appropriate for the further conduct of the proceedings (rr 13, 14)

(2.2) Application  

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r 10 – application compulsory where type of originating process not stated by the Act or rules r 11 – application permitted where: o (a) only an issue of law o (b) no opposing party o (c) insufficient time to p...