LLB306 Study Guide Sem 2, 2020 PDF

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LLB306 CIVIL PROCEDURE STUDY GUIDE SEMESTER 2, 2020 FACULTY OF LAW

LLB306 Civil Procedure

Study Guide - Semester 2, 2020

Academic Calendar The QUT academic calendar includes the starting and finishing dates for the University's first and second semesters, and the Summer Program.

Semester 2 dates •

20 July to 13 November

Orientation •

13 July to 17 July

Teaching periods • •

20 July to 25 September 6 October to 23 October

Examination •

29 October to 13 November

Public holidays • •

14 August - Royal Queensland show 5 October - Queen's Birthday

 QUT Faculty of Law 2020

LLB306 Civil Procedure

Study Guide - Semester 2, 2020

TABLE OF CONTENTS INTRODUCTORY GUIDE..........................................................................................................................................4 PART A: Unit Material............................................................................................................................................5

1. Introduction.........................................................................5 2. Aims.................................................................................. 5 3. Learning Outcomes................................................................6 4. Communicate a position that takes into account legal and non-legal considerations4. Content 6 5. Risk Management..................................................................6 6. Approaches to Teaching and Learning.........................................6 7. Skills Developed....................................................................8 8. Online Information for Unit.......................................................9 9. Assessment.......................................................................10 10. Use of Study Guide............................................................15 11. Texts and References.........................................................15 12. Timetable........................................................................17 13. Teaching Team.................................................................. 19 TUTORIAL QUESTIONS.........................................................................................................................................20

WEEK 2 TUTORIAL: The Interview and Preliminary Processes.....................21 WEEK 3 TUTORIAL: Jurisdiction and cross-vesting; Commencing proceedings; Drafting a Statement of Claim.............................................................23 WEEK 4 TUTORIAL: Joinder of Claims and Parties; Jurisdiction and crossvesting........................................................................................ 24 WEEK 5 TUTORIAL: Service..............................................................26 WEEK 7 TUTORIAL: Pleadings...........................................................28 WEEK 8 TUTORIAL: Pleadings: Summary Judgment, Court Applications, Affidavits..................................................................................... 31 WEEK 9 TUTORIAL: Disposition without trial (default judgment; summary judgment)..................................................................................... 37 WEEK 10 TUTORIAL: Disposition without trial (alternative dispute resolution)..38 WEEK 11 TUTORIAL: Disposition without trial (settlement and discontinuance) 39 WEEK 12 TUTORIAL: Appeals............................................................41 WEEK 13 TUTORIAL: Enforcement......................................................42 STUDY GUIDE...........................................................................................................................................................44 WEEK 1: Introduction to Civil Procedure; Overview of the Litigation Process; Introduction to the Uniform Civil Procedure Rules; Costs Disclosure and Assessment; Commencing Proceedings...........45 WEEK 2 Part 1: Jurisdiction, Transfer and Cross-Vesting.............................................................................52 WEEK 2 Part 2: Limitation of actions; Joinder of Claims and Parties..........................................................59 WEEK 2 Part 3: Service of Process and Documents....................................................................................64 WEEKS 3 & 4: Notice of Intention to Defend; Drafting and written communication - pleading..............69 WEEK 5: Disclosure.............................................................................................................................................85 WEEK 6: Court Applications and Affidavit Evidence; Subpoenas...............................................................90 WEEKS 7 & 8: Disposition of a matter without trial.....................................................................................102 WEEKS 9 &10: Appeals...................................................................................................................................109 WEEKS 10 & 11: Enforcement........................................................................................................................115  QUT Faculty of Law 2020

LLB306 Civil Procedure

Study Guide - Semester 2, 2020

WEEK 12 (Part 1): Costs...................................................................................................................................121 WEEK 12 (Part 2): Federal Court of Australia..............................................................................................126 WEEK 13: The process of court adjudication under an adversarial system............................................127 Key Administrative Dates..................................................................................................................................128 Legal Writing and Citation Guide.....................................................................................................................128

 QUT Faculty of Law 2020

LLB306 Civil Procedure

Study Guide - Semester 2, 2020

INTRODUCTORY GUIDE

 QUT Faculty of Law 2020

LLB306 Civil Procedure

Study Guide - Semester 2, 2020

PART A: Unit Material Credit Points: 12 Prerequisites(s): LLB103 and LLB202 Corequisite(s): Nil Antirequisites: LWB431 Date: Semester 2, 2020 Unit Coordinator: Scott Kiel-Chisholm  [email protected]  3138 1602 Student Advisor: Elizabeth O’Connor  [email protected]

1.

Introduction

Throughout your study of law, you will have analysed court decisions and espoused the determinations in those decisions as authority for various propositions of law. In this unit the focus will be upon the acquisition of the practical knowledge and skills to enable you to progress a matter from the stage of a client who presents to you with a particular legal problem through interviewing that client and all subsequent steps necessary to obtain a satisfactory resolution of the particular matter. Though litigation must be considered as one of a range of methods of resolving disputes, the focus of this unit will be on the development of basic skills for the conduct of litigation. Civil Procedure will examine relevant procedural law, i.e. the rules which regulate the commencement and carriage of proceedings, and will explore its relationship to substantive law. Procedural law cannot be studied in a vacuum, but in most instances requires an understanding of and ability to apply relevant substantive law. In this core unit you will consider basic aspects of procedural law that apply generally to the resolution of disputes. You should be aware that over the last decade or so a number of very significant pieces of legislation have been enacted which apply to various claims for damages for personal injuries, including the Motor Accident Insurance Act 1994 (Qld); the Workers’ Compensation and Rehabilitation Act 2003 (Qld), the Personal Injuries Proceedings Act 2002 (Qld) and the Civil Liability Act 2003 (Qld). This legislation is not dealt with in detail in this unit.

2.

Aims

An understanding of civil procedure is required for admission to legal practice. This core unit draws on knowledge gained throughout the degree including contract law, torts, statutory interpretation and dispute resolution skills. This subject will develop your knowledge and understanding of procedural law in Australia and extend your skills from earlier studies in law units, such as critical analysis and dispute resolution in LLB101, LLB102 and LLB103 and negotiation in LLB202 Contract Law.  QUT Faculty of Law 2020

LLB306 Civil Procedure

3.

Study Guide - Semester 2, 2020

Learning Outcomes

At the successful completion of this unit you will be able to: 1. Apply procedural law to real world issues and analyse the litigation process in

order to advise clients 2. Apply the Uniform Civil Procedure Rules to draft a range of court documents in

the context of the litigation process 3. Apply creative thinking and legal problem solving to procedural problems

4. Communicate a position that takes into account legal and non-legal considerations4. Content The topics covered in this unit are:

5.



The adversarial system and alternative methods of dispute resolution



Commencing proceedings



The jurisdiction of courts, transfer and cross-vesting



Limitation of actions



Parties



Service



Notice of intention to defend



Pleading



Disclosure



Court applications; affidavits



Subpoenas



Ending proceedings early



Appeals



Enforcement



Costs

Risk Management

There are no out of the ordinary risks associated with this unit.

6.

Approaches to Teaching and Learning

This unit employs real world and inquiry-based learning through an authentic scenariobased approach to analysing the litigation process and is practically oriented in solving disputes. The unit is a blend of in person and online learning opportunities to develop your understanding of civil procedure processes and develop your negotiation and problem solving skills.  QUT Faculty of Law 2020

LLB306 Civil Procedure

Study Guide - Semester 2, 2020

Your participation in this unit will include: •

Independent review of relevant content via weekly online resources Participation in lectures and/or online podcasts

Study Guide This Study Guide provides an outline of relevant content, prescribed readings and tutorial exercises for each week of semester. Lectures There are recorded lectures on a number of topics, as set out in the schedule below, and all of these lectures will be provided on Blackboard only. The lectures will serve as an introduction to the areas addressed, providing an outline of key cases and rules together with guides to further reading. Although most topics will be lectured in some detail, students are expected to undertake the prescribed readings to supplement the lectures. In respect of a small number of topics, students will be directed to prescribed readings and are expected to cover the particular topic through their own independent study, generally supplemented by online interactive tutorials. Tutorials The tutorial programme has been designed to apply in a practical way the rules and case law examined in the lectures and readings. It has also been designed to foster the development of relevant skills, including interviewing, conferencing and the drafting of court documents. Recorded answers and discussion will be made available for all students in the Learning Resources area of the subject’s Blackboard site. If you make genuine attempts to prepare for tutorials they will serve to provide detailed feedback as to your progress throughout the semester and assist in your preparation for the final exam. Interactive computer tutorials These tutorials involve interactive computer-based instruction available via the Blackboard site for the unit. They are not part of the formal assessment regime for the unit. The recommended stages of the unit for undertaking these interactive tutorials are detailed in the unit timetable. The first two computer-based tutorials relate to the topics of jurisdiction and crossvesting. These tutorials are based on the facts of the “Crimson Parrot” - that some students will be familiar with from their study of Criminal Law or Evidence. Subsequent tutorials are based on separate facts set out in their introductions. The interactive computer tutorials are intended to give you a greater degree of flexibility in terms of time and place of learning for several components of the unit. You may undertake these components at a time and place of your choosing, and in this way you are responsible for your own individual learning experiences. It is very important to note, though, that these tutorials have been designed to work in conjunction with other instructional materials on the particular topics.  QUT Faculty of Law 2020

LLB306 Civil Procedure

Study Guide - Semester 2, 2020

It is particularly important that you attempt the interactive tutorials only after you have become familiar with the readings and any lecture material noted in the study guide for the topic. Although they are not part of the formal assessment regime for the unit, these tutorials provide you with an immediate personal assessment of your understanding of selected concepts within the area of Civil Procedure, and detailed and immediate feedback should you have developed common misconceptions or misunderstandings about the subject areas chosen. In this way you are receiving personalised attention in relation to your learning needs enhanced to a level which could not be achieved in a group-teaching situation. Interactive computer tutorials – Student feedback Any feedback from students in relation to any aspects of the interactive tutorials is most welcome and should be emailed to Scott Kiel-Chisholm at [email protected]. Self-directed learning As this is a later year unit, you will be expected to bring earlier level capabilities to this unit, and to foster and develop your abilities as self-directed independent learners. There will be no formal lectures specifically dealing with a number of topics in the unit. On these topics your knowledge of the necessary information and principles will be derived primarily from your own engagement with the prescribed materials (including the online resource materials).

7.

Skills Developed

7.1 Skills During your studies, the Law Faculty seeks to provide an education which develops the broadest possible range of community skills, knowledge, understanding and professional and ethical responsibilities. One of the objectives of the final year program is to enhance and develop to a higher level the generic skills that have been acquired throughout your study of law. 7.2 Skills developed in Civil Procedure In the course of your study of Civil Procedure, you will be provided with the opportunity to apply skills you have already acquired over the course of your studies in the LLB and will develop specific skills to a higher level. As with all other core units, Civil Procedure will concentrate on a specific set of skills, which will be explicitly developed within the unit. In addition to these specific skills, you may also need to possess or demonstrate other skills, which are implicitly necessary for undertaking the tasks or assessment in the unit. This unit further develops the following skills (implicitly or explicitly):  Critical thinking and legal analysis;  Problem solving;  Oral and written communication;

 QUT Faculty of Law 2020

LLB306 Civil Procedure

    7.3

Study Guide - Semester 2, 2020

Legal interviewing; Drafting; Ethical orientation; and The ability to work independently. Graduate capabilities developed in Civil Procedure

Your understanding of unit content and the further development of your skills will assist you to acquire the following graduate capabilities: 1. 2. 3 4. 5. 6

8.

Discipline knowledge; Problem solving, reasoning and research; Effective communication; Life-long learning; Work independently and collaboratively; and Professional, social and ethical responsibility.

Online Information for Unit

Basic material will be available online for this unit, including the study guide, tutorial questions and tutorial material that include sample pleadings. The interactive computer tutorials should also be accessed via the unit’s Blackboard site. In relation to the drafting and communication skills component of the class group tutorial program, sample answers to the tutorial questions which require you to draft documents will usually be posted to the Blackboard site. Important notices in relation to the Unit will be posted to the “Announcements” section from time to time, but notices of significant importance to all students will also be emailed to all students on the email list for the Unit. In addition, from Week 1 onwards, please consider using the “Ask A Question Forum” on Blackboard. The “Ask A Question Forum” enables student questions, and answers to those questions, to be seen by all enrolled in the subject. The Forum will be available on the subject’s Blackboard site and a link to it will be available in the Learning Resources area and the “Tools” area (select “Discussion Board” and then select “Ask A Question Forum”). To ensure success of this resource, please consider the following: •

If you have a general query about any aspect of this unit such as lecture content, tutorial questions or the assessment tasks, please post it on this forum by creating a new thread and giving your query a clear heading.

•

Your question should be short and specific. For example, “I know the UCPR applies to proceedings in the State courts, but does it also apply to proceedings in the Federal Court of Australia?” If you have a question that involves a broad spectrum of legal inquiry, you should seek answers during consultations with a member of the teaching team or in your tutorial. For example, “I am having trouble understanding what is meant by jurisdiction. Please explain.” You should ensure you have carefully studied prescribed material on the topic before asking broad questions of this nature.

 QUT Faculty of Law 2020

LLB306 Civil Procedure

Study Guide - Semester 2, 2020

•

The teaching team are monitoring this forum regularly and will respond to queries a couple of times each week.

•

Please check this forum regularly to see what your peers are asking.

•

Posts are required to comply with the provisions of the University's Student Code of Conduct. The Unit Coordinator may amend or delete posts which are considered to be in breach of this code.

•

General queries that are answered in the Study Guide or on the Blackboard site for this unit will not be answered by email.

Please do not feel you are unable to contact a member of the teaching team on [email protected] if you have specific concerns or difficulties with the subject content.

9.

Assessment

Assessment is the definitive form of obtaining feedback on your knowledge and understanding ...