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2019 sketchntoes...

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Monash Law Students’ Society

Student Tutorials

Program SketchNotes

2018 !

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DISCLAIMER:!PLEASE!READ!BEFORE!CONSULTING!THESE!NOTES! ! 1.! The!following!SketchNotes!have!been!prepared!and!provided!by!a!law!student!tutor!as!a!skeleton!or! sketch!of!the!course!material!for!this!unit;! ! 2.! It!is!the!responsibility!of!users!to!make!note!of!any!changes!to!course!content;! ! 3.! SketchNotes!may!exclude!some!topics,!cases!and!legislation!and!may!therefore!be!inconsistent!with! current!Faculty!of!Law!course!content!or!recent!developments!in!the!law;! ! 4.! Neither!the!Law!Students'!Society!nor!its!sponsors!endorse!or!take!responsibility!for!the!quality!or! accuracy!of!these!SketchNotes;! ! 5.! SketchNotes!should!not!be!solely!relied!upon;! ! 6.! SketchNotes!are!to!provide!users!with!a!basis!from!which!they!can!create!individual!and!extensive!notes! for!their!own!assessments;! ! 7.! SketchNotes!are!not!to!be!replicated,!either!in!part!or!in!full,!during!Faculty!of!Law!assessments!for!this! unit;! ! 8.! SketchNotes!are!designed!to!be!used!as!a!teaching!aid!in!the!Student!Tutorials!Program;! ! 9.! For!copyright!reasons,!SketchNotes!are!not!to!be!printed!or!altered!by!users;! ! 10.!It!is!against!the!Monash!Law!Students'!Society's!policy!to!provide!further!materials!to!law!students!in! relation!to!course!content!for!this!subject.!Student!may!not!make!any!such!request!to!the!Monash!Law! Students'!Society!or!it!it's!student!tutors;! ! 11.!It!is!against!the!Monash!Law!Students’!Society’s!policy!for!students!to!contact!tutors!directly!via!email.! Any!requests!for!further!assistance!outside!of!tutorials!must!be!made!to!Eddy!Mizrahi,!Tutorials!Officer!at! [email protected].!Questions!regarding!course!content!should!be!made!to!the!relevant!Faculty! lecturers!or!tutors;! ! 12.!The!aim!of!the!Student!Tutorial!Program!is!to!facilitate!collaborative!learning!and!increase!student! exposure!to!practice!problems.!It's!role!is!not!to!substitute!Faculty!teaching!or!provide!a!way!for!students! to!pass!assessments!without!engaging!in!course!content;! ! 13.!If!you!have!any!questions,!please!do!not!hesitate!to!contact!Daniel!Gates,!Tutorials!Officer!at! [email protected].! ! !

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LAW4303 – Litigation and Dispute Resolution Sketch Notes, 2018 Prepared by Shaan Boolell (studied: Summer A 2015/16) NB: assume all references to statutory rules (e.g. r 6.02) are to the Supreme Court (General Civil Procedure) Rules 2015 unless otherwise specified. NB: topics of Trial, Enforcement and Appeal not covered in Sketch Notes. Cases included on 2018 reading guide, not in notes •

Rowe v Grunenthal GmbH [2011] VSC 657

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CBA v Doggett [2014] VSC 423

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Payne v Youg (1980) 145 CLR 609

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Aston (Australia) Properties P/L c CSR [2012] VSC 518

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Young v Elliott & Anor [2017] VCC 1135

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Nelson v Geary [2017] VSC 228

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Smith v State of Victoria [2017] VSC 190

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Goldenberg v Shenton & Anor [2016] VSC 21

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Hazeldenes Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) 13 VR 435

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Pepe v Platypus Asset Management Pty Ltd (No 2) [2011] VSC 21

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Topic 1: Disputes and the Civil Justice System (1) Procedural Law and Civil System Ø฀! Procedural law is “the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right” (Poyser v Minors). Ø฀! Civil c.f. criminal - Concerned with private individuals, balance of probabilities, large number of remedies, instigated by anyone with substantive law rights cf. The State/prosecution (2) Sources of Procedural Law Ø฀! Statutory jurisdiction – e.g. Civil Procedure Act, Supreme Court Rules, Supreme/Federal Court Act o! Courts maintain power in how proceedings are run §฀! r 2.01 SCR – Courts can set aside proceeding in whole or partly if they do not comply with the rules §฀! r 2.04 SCR – Courts may dispense with compliance with the Rules Ø฀! Inherent jurisdiction – Supreme Courts have IJ to regulate processes and ensure they are not abused (Gunns). (3) Participants in Litigation Ø฀! Vic Courts – Plaintiff & Defendant Ø฀! Federal Courts & VCAT – Applicant & Respondent Ø฀! Appeals (State & Federal) – Appellant & Respondent (3) Adversarial System Ø฀! Common law adversarial system traditionally leaves formulation of issues and evidence-gathering solely to parties. Ø฀! Inquisitorial (civil law) system – judge has a proactive role in relation to issues and evidence-gathering. (4) Costs Ø฀! Costs are not the same as remedies, rather they are expenses necessary in running a litigation matter Ø฀! It is money that a party may recover from an opponent in litigation for reimbursement of particular expenses incurred in litigation (5) Civil Procedure Reform Ø฀! Lord Woolf inquiry into access of justice in England in 1990’s à฀ dysfunctional system where cost of litigation outweighed remedies because of adversarial system Ø฀! Aus: Federal Government Productivity Commission Report à฀ insisting parties priorities Appropriate Dispute Resolution over litigation Ø฀! Reform has led to case management (6) Case management and the changing judicial role Ø฀! Most judges shifted from a traditional non-interventionist view to adopt more active and managerial stand. Ø฀! Case Management à฀ court involved in management of the progress of proceeding from commencement to conclusion. It is a shift away from the adversarial system.

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Ø฀! Judith Resnik (Yale): “Before and after the trial judges are playing a critical role in shaping litigation”. Ø฀! R 1.14: courts “shall endeavour to ensure that all questions in the proceeding are effectively, completely, promptly and economically determined”. (a) Policy objectives of case management – Lord Woolf

Ø฀! Achieving early settlement

Ø฀! Diversion of cases to ADR

Ø฀! Encouraging spirit of cooperation

Ø฀! Identification & reduction of issues in dispute

Ø฀! Progressing cases to trial speedily & cheaply (b) Case management in Australia Ø฀! AON rejected QLD v JL Holdings approach, finding that a party is not entitled to raise any arguable case at any stage of proceedings, subject to costs. Ø฀! Must consider public interest in efficient use of court resources and can look to certain factors such as: reason for and length of delay; prejudice to other party and other litigants waiting for trial; and stage at which amendment sought. (7) Civil Procedure Act Vic (2010) – Introduction Ø฀! Objective of CPA to change culture of Victorian litigation by adopting a less adversarial approach. Ø฀! Overarching purpose: facilitate the just, efficient, timely & cost-effective resolution of the real issues in dispute (s 7). o! Court must have regard to OP when exercising/interpreting any powers (s 8(1)). Ø฀! Paramount duty: participants in litigation have PD to court to further administration of justice (s 16). Ø฀! Overarching obligations: participants also under OAs in conduct of litigation – see ss 17-26. Ø฀! NB: above applies to parties, lawyers, funders, insurers conducting proceedings (non-exhaustive) (s 10(1)).

CPA: Overarching Obligations Obligation to act honestly Obligation requirement of proper basis Obligation to only take steps to resolve or determine dispute Obligation to cooperate in the conduct of the civil proceeding Not to mislead or deceive Use reasonable endeavors to resolve the dispute Narrow the issues in dispute Ensure costs are reasonable and proportionate Minimize delay

S17 S18 S19 S20 S21 S22 S23 S24 S25 S26

Disclose the existence of documents critical to dispute

(a) Contraventions of CPA and sanctions Ø฀! If OA contravened, court may take contravention into account in exercising powers or discretion as to costs (s 28) Ø฀! Court can make any order it considers appropriate in the interests of justice re such contraventions (s 29) Ø฀! S 65C(1): may make costs orders where appropriate to further overarching purpose

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User guide: these notes make reference to CPA sections which may be pertinent to a discussion of each individual topic. Refer to case management principles and CPA sections (as well as other policy objectives of civil procedure) to attain policy marks on exam.

Topic 2 – Appropriate Dispute Resolution Ø฀! ADR is positioned between informal, unregulated dispute resolution and formal adversarial litigation. Ø฀! Progressing disputes through courts uses a lot of resources and can be expensive. It might more appropriate for parties to follow other dispute resolution methods. (1) Models of ADR Determinative ADR

•! Adjudication: Parties present arguments and evidence to a dispute resolution practitioner who makes a determination which is enforceable by the authority of the adjudicator. Ø฀! Arbitration: essentially private court – parties submit evidence to an arbitrator of their choice. Arbitrator makes a decision which is binding. Facilitative ADR Ø฀! Conciliation: parties identify issues, develop options, consider alternatives and endeavour to reach an agreement with help of a neutral third party. Advisory, not determinative. Ø฀! Mediation: process of facilitated negotiation. Parties – with help of neutral 3rd party – identify issues, develop options, consider alternatives (e.g. BATNA) and endeavour to reach win-win outcome. Different process to conciliation. (2) Advantages of ADR Limitations of litigation

Ø฀! Unpredictable outcomes

Ø฀! Win-lose outcomes

Ø฀! Delay and costs

Ø฀! Stress

Ø฀! Publicity

Ø฀! Limited remedies available (rights vs interests)

Ø฀! No focus on durable solutions

Ø฀! Relationships damaged

Benefits of ADR

Ø฀! Flexibility (process)

Ø฀! Control by parties

Ø฀! Privacy

Ø฀! Cheaper & faster

Ø฀! Creative (win-win) solutions

Ø฀! Enforcing outcomes

Ø฀! Communication & relationship

Ø฀! Inclusion of non-parties

(3) Court-annexed ADR Under the Rules Ø฀! R 50.08: Court may, at any stage, with consent of parties, refer proceeding (or part) to arbitration

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!! 7 Ø฀! R 50.07: Court may, with/without consent, refer whole/part of proceeding to mediation – must negotiate in good

faith Under the CPA Ø฀! S 66(1): Court may order, at any stage, that proceeding or part thereof be referred to ADR Ø฀! S 66(2): Only need consent for determinative processes that results in a binding outcome e.g. arbitration Ø฀! NB: s 24 (Vic Charter) – right to have proceeding decided by competent, independent & impartial court/tribunal (4) ADR and the CPA •! Resolving a dispute via ADR is an overarching obligation of the CPA Ø฀! S 16: paramount duty to further admin of justice re… (c) any ADR taken in civil proceeding Ø฀! S 22: Overriding obligation to use reasonable endeavours to resolve dispute Ø฀! Ss 28-29 + s 65C(1) – contraventions Lawyers and ADR Ø฀! Overarching obligations apply to legal practioners (s 10) including in ADR proceedings (s 11). Ø฀! r 7 of Australian Solicitors’ Conduct Rules 2015: must provide advice re alternatives to litigation to client.

Topic 3 – Jurisdiction (1) Introduction Ø฀! To hear [P’s] case, [Court] must have both subject matter and territorial jurisdiction (Laurie v Carroll, Dixon CJ). Ø฀! Ø฀! Issuing proceedings in the correct court is important for strategic and procedural reasons (size/availability of remedy, costs etc). (3) Subject matter jurisdiction – what kinds of disputes can Court hear?

(3.1) Victorian Courts and the VCAT (a) Victorian Civil and Administrative Tribunal Ø฀! Jurisdiction derived from multiple pieces of legislation including Fair Trading Act, Res Tenancies Act, Equal Opportunity Act, and Planning and Environment Act. Ø฀! Has civil, administrative and human rights divisions. (b) Magistrates’ Court – Magistrates’ Court Act 1989 Ø฀! Any claim at CL or equity up to $100k (s 100). No jurisdiction over prerogative writs or admin matters (s 100(2)) Ø฀! General Civil Jurisdiction covers matters relating to claims for debts, damages for breach of contract, damage to property or for injury and limited neighbourhood disputes (e.g. fencing issues) Ø฀! Civil appeals from MC go to Supreme Court. (c) County Court – County Court Act 1958

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(Abolished with Courts Legislation (Jurisdiction) Act 2006). Ø฀! Include claims against municipal councils for loss/injury while using roads, land, buildings etc controlled by council Ø฀! Appeals to Court of Appeal. NB: if federal claim, use Supreme Court (or Fed Court). (d) Supreme Court of Victoria Ø฀! S 85(1) Constitution Act 1975: superior court of Vic with “unlimited jurisdiction” “in or in relation to Victoria”. Ø฀! Has 3 divisions; Commercial Court, Common Law Division & Criminal Law Division Ø฀! Pick Supreme Court over County Court if: want to include fed claim, complex case or SC has particular experience. NB. CC cheaper and quicker Ø฀! VSC can exercise federal jurisdiction (s 4 Cth Cross Vesting Act) and jurisdiction of other State courts (s 9 State CV) (3.2) Courts exercising Federal Jurisdiction Ø฀! The judicial power of the Cth is vested in the High Court, and such other Federal Courts as Parliament creates or vests with federal jurisdiction: (s 71 Const’n)

(f) High Court of Australia Ø฀! Original jurisdiction ins all matters arising under a treaty/affecting representatives of other countries/between states; b/w residents of different states; b/w a state & resident of another state/writ of mandamus/prohibition or injunction sought against officer of Cth (s 75) Ø฀! Appellant jurisdiction over all judgements (s 73). NB. need special leave for an appeal (s 76) (e) Federal Court – Federal Court of Australia Act 1976 Ø฀! Original jurisdiction “as it is invested with by Parliament” (s 19) such as arising from Cth law e.g. matters under Fair Work Act 2009 (Cth). Ø฀! Appellant jurisdiction over judgements from Federal Circuit Court/ a single judge from FC/ judgements of State courts exercising federal jurisdiction (s 24(1) FCA) Ø฀! Cannot exercise State jurisdiction under Cross-Vesting scheme (Re Wakim) but can under accrued jurisdiction. o! S 22: FCA may grant all remedies so that all matters in the controversy may be finally determined. o! If you have a tenable (Johnson Tiles) federal claim (e.g. ACL claims) and a state claim (e.g. tort) arising out of same events/transactions (Fencott) or ‘one set of events’ (Re Wakim) FCA may hear the state claims too. o! NB: AJ is discretionary jurisdiction (Stack) (2) Territorial jurisdiction

(a) Victorian courts Ø฀! A nexus or territorial link between dispute and Victoria must be established (s 85(1) Constitution Act 1975 (Vic)). (b) Challenging territorial jurisdiction – forum non-conveniens

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Ø฀! If Defendant is in another country, D may seek to stay proceedings in Australia if it is an inappropriate forum Ø฀! Proceeding will be stayed if Australian court is a clearly inappropriate forum (Voth; Oceanic). Ø฀! Will be clearly inappropriate if: oppressive, vexatious, or an abuse of process. Look to Spiliada factors (Voth):

•! Expense and convenience

•! Where did cause of action arise?

•! Where do the parties reside or carry on

•! Where do the majority of witnesses reside?

business? •! Which law will govern proceedings?

•! Other parties involved amenable to certain jurisdiction?

(c) Territorial jurisdiction – Federal Court Ø฀! No need for TJ as FCA’s jurisdiction wholly dictated by Parliament (s 19(1) Federal Court of Australia Act). (4) Case transfers under Cross-Vesting legislation Ø฀! S 5 in Cross-Vesting Acts allows transfer of proceedings between State/Territory Sup. Courts & Fed/Family Court. o! Aim is to limit exclusive jurisdiction in courts and create a system gle court could provide complete relief regardless whether the claim has jurisdictional procedural problems

Ø฀! Transfer will be ordered where: o! It is more appropriate for another court to hear (s 5(2)(b)(i)-(ii)); or o! It is otherwise in the interests of justice that a transfer be ordered (s 5(2)(b)(iii)). Ø฀! Interests of justice: wider than interests of either party – a case management decision, weighing costs, expense and inconvenience (BHP Billiton v Schultz). Ø฀! See also Slater & Gordon v Porteous for examples. (5) Case transfers within Victoria Ø฀! Governed by the Courts (Case Transfer) Act 1991 – allows courts to shift cases to match seriousness to skill, experience and authority of court.

Topic 4: Multiple Parties and joinder (of claims) Parties (1) Capacity – both parties must have capacity to sue/be sued. Determined by their character not legal right Ø฀! Order 15 SCR: minors or handicapped parties must sue/defend by litigation guardian who must engage solicitor. Ø฀! Partnerships must be sued in name of firm (Order 17). Corporations may be sued, using correct name (Order 4) and ABN (s 153 Corps Act) Ø฀! Cannot sue bankrupt parties (s 58(3)(b) Bankruptcy Act) unless for personal injury (s 82(2)). Ø฀! Cannot sue unincorporated bodies e.g. Catholic Church. (Savcor) (2) Standing

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Ø฀! Plaintiff must have sufficient interest in matter to bring action. Will have standing if P has a private right or special interest. Special interest more than mere intellectual or emotional concern (ACF v Commonwealth). Ø฀! No separate test for public interest groups. Courts will take additional considerations into account including whether group is representative of significant public concern, recognised by government, peak body etc (North Coast). Arguably the threshold is higher for groups. (3) Interveners and Amicus Curiae Ø฀! Interveners (someone whose interests will be affected by judgment but no direct involvement in matter) may be made a party pursuant to r 9.06. Brennan CJ in Levy: non-parties bound by decision are entitled to protect their interests. Ø฀! Amicus curiae (someone seeking involvement, but not to be made a party) may be heard when Court believes it will be significantly assisted by AC’s submissions in a unique way and without disproportionate cost/delay (Levy).

(4) Avoiding multiplicity of proceedings Ø฀! S 29(2) SCA: Courts should make sure all disputes are finally determined and avoid all multiplicity of proceedings concerning any of those matters/disputes

Ø฀! S 7 CPA: Overarching purpose to facilitate the just, efficient, timely & cost-effective resolution of real issues in dispute.

(5) Joinder of Parties Ø฀! P can join other plaintiffs (joint rights/similar claims) or other defendants (multiple responsibility/uncertain liability) in their proceedings Ø฀! NB: joinder used before proceedings and addition/substitution during proceedings. (a)! Necessary joinder Ø฀! If P claims relief to which another party is jointly entitled that party must be compulsory joined (r 9.03(1)). If another D jointly liable, must be compulsory joined ((3)). Ø฀! If D jointly and severally liable, P can bring separate proceedings (e.g. partnership) – r 9.03(2). (b)! Permissive joinder – r 9.02 Ø฀! 2 or more persons may be joined where: (a)(i) common question of law or fact and (a)(ii) rights to relief arise out of same transaction/series of transactions OR (b) where court gives leave to do so. Ø฀! If you make out one of the r 9.02(a) limbs, likely to get leave under r 9.02(b) – A&J Partitions v Jolly. This rule is construed liberally (Birtles) Ø฀! Joinder must not result in unfairness to either party (Bis...