Lecture notes, Topics 1-15 - Civil Procedure PDF

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CIVIL PROCEDURE

TOPIC 1: Introduction Procedural law

What is procedural law? 

Procedural law governs the conduct of court proceedings. That is, ‘the mode of proceedings by which a legal right is enforced, as distinguished from the law which gives or defines the right’ (Poyser v Minors per Lush J). They’re ‘adjectival’ rules, in the sense that they qualify substantive rights.



Purpose: a process for the resolution of disputes, and also to perpetuate the rule of law (ie process must be designed to be ‘fair, economical and expeditious’ – J A Jolowicz).



Chronology: i.

ii.

Initiation of proceedings; a.

Decision to litigate (ADR? Settlement?);

b.

Choice of court;

c.

Choice of parties;

d.

Issue proceedings;

e.

Serve documents; and

f.

Defendant files appearance.

Pre trial procedure – definition of issues at stake between the parties; a.

Pleadings exchanged (outline the parties’ arguments);

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b.

Gathering/ producing evidence – via Discovery and Interrogatories; and

c.

Interlocutory proceedings (applications and hearings before the Master/ Judge dealing with preliminary matters that need to be decided before trial – eg in Donoghue v Stevenson, they were just considering whether a DOC was owed).

iii.

Trial;

iv.

Costs;

v.

Appeal; and

vi.

Enforcement.

The Courts 

In Victoria: o

Supreme Court; 

Has inherent jurisdiction = power of superior courts to regulate their own processes to prevent an abuse of process.



Per Bongiorno J in Gunns, “The Court has power both under the Rules of the Supreme Court & inherently to ensure that its processes do not become a source of injustice themselves. It may do this by whatever interlocutory order is necessary, from ordering necessary amendments to a pleading to, in an extreme case, terminating the proceeding.”



o

County Court; and

o

Magistrates’ Court.

Federal system: o

High Court;

o

Federal Court;

o

Family Court; and

o

Federal Magistrates’ Court. * These courts do not have inherent jurisdiction – they get their mandate from legislation.

Sources of procedural law 

Legislation: Supreme Court of Victoria established by Supreme Court Act 1986 (Vic) – sets SCV’s composition, administration and statutory powers.



Delegated legislation: SC Act provides that procedural rules may be made by delegated legislation. The Rules of Court are devised by rules committees and can be altered by judges. Rules of Court in Vic provided in Supreme Court (General Civil Procedure) Rules 2005 (Vic). * Each book is called a “Chapter”, so chapters are called “Orders” – Order 50.3 is pronounced “3rd rule of Order 50”.

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

Practice notes: The inherent jurisdiction of SC entitles judges to issue practice notes and directions. While not legally binding, courts may ensure they are complied with by exercising their inherent power to make an order against a party, such as a stay on proceedings or an order for costs.

Participants in litigation 

Victorian courts: ‘Plaintiff’ and ‘Defendant’;



Federal system: ‘Applicant’ and ‘Respondent’; and



Appeals (state and federal): ‘Appellant’ and ‘Respondent’.

Adversarial system 

Under adversarial system, ‘two adversaries generally take charge of the procedural action’ / ‘party control’ (cf. inquisitorial system, where ‘officials perform most of the activities’).







Main attributes of adversarial procedural system (D Maleshin): -

Pre-trial conferences and party-controlled, pre-trial investigations;

-

Trials designed as ‘concentrated courtroom drama…’;

-

Passive judges (like an ‘umpire’ – ‘more reactive than proactive’ per ALRC); and

-

Party-selected and paid experts.

Main attributes of inquisitorial system: -

A lack of distinction between the pre-trial and trial phases;

-

Active judges;

-

Judicial proof taking and fact gathering;

-

Judicial examination of witnesses; and

-

Court-selected experts.

Criticism of adversarial system: “Thus the power of the judge to find the truth is limited by the parties’ ability and desire to lay all the relevant facts before her or him. That may result in the judge administering the law as distinct from justice” (Justice Ipp).



Bentham considered that an ideal system of procedure would cut across the standard distinctions between ‘adversarial’ and ‘inquisitorial’ systems. He favoured active questioning by the judge and confrontation of parties and witnesses face to face in oral proceedings and regarded cross-examination as the redeeming feature of the English tradition.

Costs 

Costs = money that a party may recover from opponent in litigation for reimbursement of particular expenses incurred in litigation.

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

General rule in SC is that loser pays winner’s costs (cf. USA).



Is this position good? 

Discourages parties with weak cases (eg vexatious litigants);



Encourages parties with strong cases – winner does not lose money due to litigation costs;



Can encourage settlement in intermediate cases; and



Can be used to discipline parties – encourages parties to comply with rules and deadlines (otherwise could get a costs penalty).

×

Can undermine access to justice – discourages people from pursuing good legal rights because they can’t take the risk they might lose and have to pay legal costs; and

×

Can be used as an offensive mechanism (called SLAPP writs – Strategic Lawsuit Against Public Participation, eg McDonalds’ case1 and Gunns case).

Case management

Case management 

Case management = court is involved in management of the progress of proceeding from commencement to conclusion. Judges adopt a more active managerial role – this is a shift away from the traditional adversarial model.



As described by the ALRC, the judge is “not simply responding as a passive umpire to processes initiated by litigants and their lawyers but is active in investigating the best way to define the dispute and to present the case … The focus of dispute resolution is no longer solely directed towards the final hearing. Rather, legal proceedings are viewed as a continuous series of meetings, hearings and written communications during which evidence is introduced, witnesses heard and motions made.”





Objectives of case management (ALRC): -

Early resolution of disputes;

-

Reduction of trial time;

-

More effective use of judicial resources;

-

Monitoring of caseloads;

-

Increasing accessibility to the courts;

-

Reduction of criticism of the justice system by reason of perceived inefficiency.

How? In general, all cases are controlled by the court registry and are assigned to different judges or judicial officers at different times for different purposes. When an event relating to a case has been dealt with it is returned to the pool of cases to await the next event and to be assigned again, not usually to the same judge or judicial officer. ‘Master list’ method.

1

McDonalds sued 2 environmental campaigners for defamation. They won, and were awarded £40,000.

However, their legal costs were about £10 million.

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

List system in the SCV: o

‘Individual list’ model.

o

Cases are divided into certain areas (eg commercial list, major torts list and others).

o

Parties can choose if they want to go into one of these lists – it costs extra money.

o

Why? Judge can ensure parties are following the rules, judge is usually specialised in that area, and judge manages pace of litigation to get to trial quicker.

Crisis – Justice vs. Efficiency 

Traditionally, ‘justice on the merits’ approach was taken to override procedural arrangements. Per Lord Millett in Gale v Superdrug Stores (1996, UK),‘It is easy to dispense injustice quickly and cheaply, but it is better to do justice even if it takes a little longer and costs a little more’. However, that “little” can mean a lot.



The combination of high costs and delays deterred aggrieved persons from pursuing claims thus reducing access to justice. The response to this crisis led to the development of case management (above).



Introduction of efficiency.



As Lord Woolf observed in his report on access to justice in the UK in 1990s, “The litigation process is too often seen as a battlefield where no rules apply. In this environment, questions of expense, delay, compromise & fairness may have only low priority. The consequence is that expense is often excessive, disproportionate & unpredictable; & delay is frequently unreasonable.”





Lord Woolf said a system needs: 1.

To be just in the results it delivers;

2.

To be fair in the way it treats litigants;

3.

To offer procedures & costs proportionate to nature of issues involved;

4.

To deal with cases with reasonable speed;

5.

To be understandable to those who use it;

6.

To be responsive to the needs of those who use it;

7.

To provide as much certainty as the nature of the particular case allows, and

8.

To be effective, adequately resourced and organised so as to give effect to 1-7.

Embodies a notion of distributive justice – need to do justice to the parties in the litigation and other litigants awaiting trial.



Lord Woolf’s recommendations are codified in Vic: r 1.14

In exercising any power under these Rules, the Court shall endeavour to ensure that all questions in the proceeding are: - effectively; - completely; - promptly; and

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- economically; determined. 

Inherent tension in trying to balance these considerations.

Victorian Reforms The Civil Procedure Act 2010 (Vic) marks the first stage of the Victorian Government's legislative response to the Civil Justice Review report published by the Victorian Law Reform Commission in May 2008. Its objective is to change the culture of litigation in Victoria by adopting less adversarial approach. Introduces the‘overarching purpose’ to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute between litigants, by requiring the courts to exercise their powers having regard to a range of objectives, including (Part 4.2, CPA):    

the public interest in the early settlement of disputes; the efficient use of judicial resources; minimising delays in the determination of disputes; and ensuring that the approach to a civil proceeding is proportionate to the complexity of the issues in the proceeding and the amount in dispute.

The court must have regard to the overarching purpose in exercise or interpretation of any of its powers: Section 8(1). Participants also have overarching obligations (ss 17-26 CPA):  act honestly 

only make claims that have a proper basis



only take steps to resolve or determine the dispute



cooperate in the conduct of the civil proceeding



not mislead or deceive



use reasonable endeavours to resolve the dispute



narrow the issues in dispute



ensure costs are reasonable and proportionate



minimise delay



disclose the existence of documents critical to dispute

Challenging case management decisions 

AON Risk Services v ANU (2009) o

Facts: Some property owned by ANU was destroyed by the 2003 Canberra bushfires. Action was first against insurance company who wouldn’t pay up. They also sued the insurance broker AON. In the 1st week of the 4 week trial, ANU settled with insurance company. In suing the broker, they realised they needed to change their case so they asked judge for permission to amend statement of claim at trial (to a completely different action). They were given leave to amend.

o

Held: Leave should not have been given.

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o

 Joint judgment (Gummow, Hayne, Crennan, Kiefel and Bell JJ):

o

It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.

o

Whether party should get leave to amend depends on the rules, all the circumstances of the case, and number of factors including: -

Reason for, and length of, the delay in applying for amendment, including whether appln made in good faith;

-

Prejudice other party will suffer if amendment allowed (and whether costs adequately compensate for that);

o

-

Point in litigation at which application made; and

-

Prejudice of other litigants awaiting trial dates or whose trial dates may be affected.

Here, ANU gave no good explanation for why they were changing their strategy; new defence means trial date will be adjourned/vacated so massive delay – it will cost AON a lot of money, and emotional effects of having case hang over their head for so long; middle of trial; and, delay other trial dates.

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TOPIC 2: Alternative Dispute Resolution (ADR) Introduction 

According to the Charter of Human Rights and Responsibilities Act 2006 (Vic), everyone has a right to have a dispute decided by a ‘competent and impartial court or tribunal after a fair and public hearing’; s 24(1).



Although you have a right to have disputes decided by a court, this doesn’t mean you have to.



Limitations of litigation:



-

Risk, unpredictability, delay and financial costs;

-

Stressful (“strain of litigation”, see JL Holdings);

-

Public;

-

Courts concerned with legal rights rather than an effective solution to the real conflict; and

-

Parties’ relationships often irrevocably damaged.

ADR may be faster, cheaper, less adversarial and more flexible than litigation, but more structured and regulated than the disputants’ own efforts to resolve the conflict by themselves.



ALRC has suggested that ADR will not be suitable: -

When a definitive or authoritative resolution of the matter is required for precedential value;

-

When the matter significantly affects persons or organisations who are not parties to ADR processes;

-

When there is a need for public sanctioning of conduct or where repetitive violations of statutes and regulations need to be dealt with collectively and uniformly;

-

When a party is not able to negotiate effectively themselves or with the assistance of a lawyer; and

-

In family law matters, where there is a history of family violence.

Models of ADR 

Two ADR processes: 1.

Determinative: 3rd party makes a determination on the dispute, eg arbitration. The outcome of most determinative processes is enforceable through the courts; and

2.

Facilitative: 3rd party helps to manage the process of dispute resolution, eg mediation. The facilitator does not make a decision. Rather, the process facilitates the parties’ efforts to resolve the dispute for themselves.

Arbitration

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



Characteristics: o

Quasi-judicial.

o

Less formal than litigation.

o

Rules of evidence relaxed – since it’s a private system, the parties can decide how it should be run.

o

Arbitrator makes determination (an award).

o

Outcome binding on the parties – but has no precedential effect.

o

Outcome is only reviewable on limited grounds.

When would you use? International commercial disputes (enforceability of arbitral awards – accomplished pursuant to an international agreement, flexibility of the procedure, and ability to select experienced arbitrators) and commercial disputes (more efficient, cheaper, more control, private and can select arbitrators with expertise in the subject matter of the dispute).



When would you not use? Complicated legal questions (arbitrator may not even be a lawyer) or if you want rules of evidence to properly apply.

Mediation 

Characteristics: o

Facilitated negotiation.

o

Mediator a process facilitator.

o

No set procedure – can be adapted to the dispute/parties.

o

Mediator will not express opinions/ offer advice to the disputants.

o

Confidential process.

o

No resolution without parties’ consent.



When would you use? Control (parties make the decision – ‘self-determination’ aspect).



Power imbalance? o

No decision is imposed on weaker party;

o

BUT, there is a risk that the weaker party will accept a less satisfactory outcome than would have been decided by a neutral 3rd party;

o

The mediator’s role does not include guaranteeing a ‘fair’ outcome – the mediator facilitates the parties’ self-determination, and so if one party is willing to accept an ‘unfair’ outcome, mediation may produce ‘unfair’ results;

o

Mediators can use procedures and strategies to help to reduce these imbalances (eg allowing all parties a proper opportunity to express their views, preventing abuse, threatening or harassing behaviour, suggesting that each party have access to independent legal advice etc).

Court-annexed ADR

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

A court may order, at any stage of a proceeding, that the proceeding, or part of the proceeding, be referred to ADR (Civil Procedure Act s 66(1)).



Although an order made under s. 66(1) does not require the consent of the parties, consent must be provided if the ADR in question directly or indirectly results in a binding outcome: s. 66(2)

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