THEORY QUESTIONS CIV PRO Step [4] Disputed issues are prepared for trial (Directions hearings and

ared for trial (Directions hearings and pre-trial 3. Other reasons include excessive delays & costs, inefficient openness &
WHAT IS CIVIL PROCEDURE? conferences) excessive formalism.
Civil Procedure can be broken into two parts. First, it is procedural law; that is Step [5] If case does not settle, goes for trial Indeed, the general trends in reforms therefore aimed to eliminate delays, to
law, which governs the conduct the conduct of proceedings before a court, What are the sources of civil procedural law? keep the costs of proceedings proportionate to the subject matter of disputes,
tribunal or quasi-judicial body. It is necessary to distinguish between the mode of There are 3 tiers of civil procedural law. to ensure cost effective case preparation, to encourage appropriate and timely
proceedings (which is procedural law) from the law which is being enforced 1 st tier: Legislation establishing the relevant Court settlement of disputes, to divert matters to more suitable dispute resolution
(which is substantive law). The aspect is that it involves civil law as opposed to Supreme Court of Queensland Act 1991 (QLD) processes (eg mediation) as opposed to court, to ensure efficient use of judicial
criminal law. Criminal Law is brought by the state to punish offenders & protect The Judiciary Act 1903 (Cth) & administrative resources and to facilitate, just, efficient, determination of the
the public. Cases are usually prosecuted by police or Crown prosecutor Federal Court of Australia Act 1976 (Cth) real issues in dispute. These trends are reflected in the objects clause of the
(representing the State) against the alleged perpetrator/s of an offence or crime Family Court Act 1975 (Cth) UCPR SECT 5 (Below)
(the accused or defendant) and guilt must be proved BRP. Civil Matters however, Federal Magistrates Act 1999 (Cth) The specific measures which embody these changes relate mainly to
are those matters brought by persons wronged to obtain remedies for - Establishment of greater uniformity in the Rules of Court, with a single test
themselves. The person wronged (the plaintiff) may bring an action seeking a nd
2 tier: Delegated legislation (Rules of Court) of rules applicable to the Supreme, District & Magistrates Court, unless the
range of remedies including an award of monetary damages against the alleged Uniform Civil Procedure Rules 1999 (QLD) rules otherwise expressly provide UCPR rule 3
wrongdoer (the defendant). The action may be based in any one or more of a - Duties to advise / consider ADR
High Court Rules 2004 (Cth)
number of branches of civil law such as contract law, the law of torts, property law - Undertaking by parties & lawyers to proceed in an expeditious way
Federal Court Rules 1979 (Cth)
or equity and the plaintiff must prove its case against the defendant on the - Costs orders against practitioners
balance of probabilities. Etc etc - Case management schemes
What are the objectives of civil procedure? - Institutionalization of ADR processes
The Civil Justice system serves important private & public interests. It provides a
rd
3 tier: Practice Notes and directions made by the courts - Streamlining the process of collecting and evaluating evidence
mechanism through which private rights may be vindicated & promotes the Superior courts have power to regulate their own procedure - Restraining repetition of hopeless litigation/wider powers re vexatious
orderly functioning of society in accordance with the rule of law. The rules of civil What are the features of the Civil Common law system? litigants
procedure provide the mechanisms through which civil justice may be delivered & Characteristics of Common Law Justice System - Retention of advocates immunity (to discourage re-litigation)
they must operate effectively to that end. The rules of procedure serve several Legal principle is derived from judgments (& legislation) - Increased strategic importance of offers of settlement
purposes, not all of them reconcilable. Some of the more obvious goals include: Proceedings are adversarial conducted as a contest between opposing DISCUSSED IN MORE DETAIL
- The effective enforcement of orders or judgments; parties SECT 5 Philosophyoverriding obligations of parties and court (UCPR)
- Speedy & final disposition of disputes or charges; Proceedings are controlled by the parties to the dispute they decide the (1) The purpose of these rules is to facilitate the just and expeditious resolution
- Accuracy of fact-finding issues and the evidence to put before the court of the real issues in civil proceedings at a minimum of expense.
- The best choice of court, in terms of jurisdiction, cost, speed, effectiveness The truth is tested through cross-examination (2) Accordingly, these rules are to be applied by the courts with the objective of
& ability In the past, parties controlled the flow of proceedings; they determined if avoiding undue delay, expense and technicality and facilitating the
- Cost-effective procedures for the vindication of rights 7 the enforcement of and when a matter was listed for hearing. purpose of these rules.
obligations o The trial was a distinct & a separate state in the litigation process (pre- (3) In a proceeding in a court, a party impliedly undertakes to the court and to
- The provision to each person affected of due notice of a claim or charge, trial procedures quite separate). the other parties to proceed in an expeditious way.
and of an opportunity to respond. o The judge was an impassive observer. (4) The court may impose appropriate sanctions if a party does not comply with
- The protection of basic rights or values, even at the expense of accurate Contrast with Inquisitorial Model these rules or an order of the court.
fact-finding Law found in authoritative statements or codes of basic legal principles Example The court may dismiss a proceeding or impose a sanction as to
- The efficient use of judges time at trial by use of procedures designed to issued by the state costs, if, in breach of the implied undertaking, a plaintiff fails to proceed as
reduce to a minimum the element of surprise at trial, & to streamline the Legal proceedings are a continuous series of meetings, hearings, written required by these rules or an order of the court.
articulation & presentation to the court of only those issues genuinely in communications and submissions. COsts order under r 5 - general
contest There is greater reliance on documents as a basis for proof of the truth. Effect of SECT 5 UCPR
- The provision of assistance to litigants in the gathering of evidence. One of Judges play a more proactive role actively questioning the parties and -A party undertakes to proceed in an expeditious way
the hallmarks of the adversarial system is the fact that the judge has no witnesses. -Court has power to impose a costs order r5(4) (under sect 5 = fine, a penalty for
responsibility for gathering facts & interviewing witnesses & minimal control not doing what you promised to do)
Why did the system need to be reformed?
over the selection of issues to be fought. The trade off is the provision to the Concerns about the functioning of the civil justice system has persisted in Unreas instituting proceedings ie no consideration to prospects of
parties of such devices such as discovery & subpoenas success
Australia for many years. This perception led to a serious of enquiries across
- The provision of effective disincentives to the bringing of unfounded or Australian jurisdictions, which revealed that the system needed to be reforms. Not accepting reas offers to settle
vexatious claims. Using court process for ulterior purpose
The reasons for this are:
Basic Structure of Civ Pro 1. the traditional adversarial system, which was applicable in Australia in civil Changing Roles
Step [1] Civil proceedings are commenced by one party (the plaintiff) issuing a litigation before case management. This system involved the Court Judges more interventionist (with immunity).
formal claim against the other (the defendant). There are 2 types of originating playing a passive role and where Parties had responsibility for all pre-trial Practitioners need to become highly skilled risk assessors (immunity in some
processes Claim (F2), statement of claim (F16) OR Application (F5), affidavits preparation and even at trial the Courts role was still fairly passive, jurisdictions).
(F46). thereby having an over dependence on party control & party prosecution. Adversary system there is less party control but arguably reforms ensure due
Step [2] Filing Issuing by Court Service on defendant/s 2. An absence of judicial responsibility for the effective use of resources and process and natural justice.
Step [3] Defendant Responds (if not Plaintiff can ask for a default judgment). Def instead an over dependence on an all-embracing trial. Students
can also respond with a counterclaim / third party notice
Negotiation; Mediation; Interviewing; Selection of cases suitable for ADR; Risk Recognizes that cases have divergent CM requirements defend must be filed or a default judgment entered within 30 days from the date
analysis and assessment; The giving of early advices on evidence; The giving of Applicable in QLD of service of the claim.
advice on prospects of success. REGULATION OF CASES The occasion for case flow management intervention arises if a request for trial
ADVOCATES IMMUNITY PROBLEM Q BAD BARRISTER All cases are regulated by Practice Directions (3 rd tier) date has not been filed within 180 days of the filing of the notice of intention to
Barristers & solicitors advocates are immune against actions for negligence Qld Supreme Court: defend or the last notice of intention to defend if there is more than one
arising out of their presentation in court. (Recognized in by HC in Giannarelli v -Has a master list (with events/landmarks and timelines for each) defendant. In such a case the registrar may call on the plaintiff by notice (a CFM2
Wraith ) -Has also created specialist lists for particular types of disputes notice) to show cause why the proceedings should not be deemed resolved
Rationale: policy-basedto discourage litigation against lawyers by unsuccessful supervised case list for complex cases/cases requiring more than 5 days When a CFM2 notice is sent to a party, that party has 21 days to show cause.
& unhappy litigants DOrta-Ekenaike trial, managed by a supervised case list judge Paragraph 5 of PD 17/2012 provides that a party must respond to the notice to
CF: Barrister owes the client (not the solicitor) a duty to exercise reasonable care commercial cases list where cases are managed by a commercial list show cause in accordance with the requirements of that paragraph. The parties
& skill in providing out of court professional services such as giving advice & judge. must show cause by: entering judgment, filing an application for trial date,
drafting documents. All Federal Court registries: individual docket system cases randomly assigned bringing an application to facilitate the timely determination of the proceeding
Other jurisdictions: immunity has been abolished in England (Arthur JS Hall ) & to a particular judge who manages the case until disposition gives it continuity matter OR proposing a plan to facilitate the timely determination of the
New Zealand (Lai v Chamberlains ) and eliminates the need to explain the case afresh each time. proceeding.
VEXATIOUS & HOPELESS LITIGATION PROBLEM Q GUY KEEPS [1] Supervised Case List If there is non-compliance with the CFM2, or there is non-compliance with the
LITIGATING -Cases where a party estimates that the length of the trial will exceed five days & case flow plan that results from the CFM2, the proceeding is referred to a judge.
Court has inherent jurisdiction to strike out vexatious claims and claims that cases that will require greater than normal resources are managed in the CONFLICTING VIEWS RE COURT EFFICACY V INTERESTS OF
constitute a repetition of a hopeless case. In Qld, this power is also found in the Supervised Case List: Practice Direction 11 of 2012, Supervised Case List. JUSTICE
Vexatious Proceedings Act 2005 (QLD), where s 5 says that the Court has the -Management in the Supervised Case List has regard to: The overriding There are conflicting views as to the relative weight to be given to court efficiency
power to make an order on the application of the AG or the registrar of the Court philosophy in r 5 of the Uniform Civil Procedure Rules, ADR, Offers to settle, The and the interests of the parties to the individual cases.
or, with leave, a person against whom another person has instituted or conducted efficient management of documents in litigation, The efficient management of However (from readings) overriding philosophy that the Court must
vexatious proceedings. expert evidence & expert witnesses manage litigation to bring cases to an early & economical disposition
Vexatious Proceeding in defined widely to include: A supervised case is allocated a trial date when the parties file a request for consistently with the needs of justice.
A proceeding that is an abuse of the process; and trial date. CASES (provided in lecture slide, however not mentioned by Bobette)
A proceeding instituted to harass or annoy, to cause delay or detriment, or Signing a request for trial date signifies that the parties regard the Queensland v JL Holding Pty Ltd 1997i: interests of the parties to the individual
for another wrongful purpose; and cases Late application by the defendant to amend a defence was refused by the Federal
proceeding as ready for trial: r 467
A proceeding instituted or pursued without reasonable ground; and Court. On appeal the High Court allowed the amendment Justice for the parties was the
[2] Commercial List paramount consideration. Case management ... a relevant consideration.
A proceedings conducted in a way so as to harass or annoy, cause delay or Section 60 of the Supreme Court of Queensland 1991 authorises the court Aon Risk Services Ltd v Australian National University [2009] HCA 27: court
detriment, or achieve another wrongful purpose. to create a special list with procedures adapted for dealing with commercial efficiency More weight given to justice for the public as a whole ie substantial public
Same considerations apply as per Cost orders against practitioners !! cases interest in reducing cost and delay so other litigants have timely access to courts . Parties
go to section 5 UCPR Commercial cases where the estimated trial hearing time is 10 days or less have choices as to what claims are to be made and how they are to be framed. But limits
CASE MANAGEMENT PROBLEM Q may be entered in the commercial list: Practice Direction No 3 of 2002. will be placed upon their ability to effect changes to their pleadings, particularly if litigation is
Definition: Case Management refers to Court supervision & control of cases advanced.
A case may be entered in the commercial list only at the direction of a Althaus v Australia Meat Holdings Pty Ltd [2009] QSC 05 facts
from the time of their commencement to their disposition. It is designed to reduce direction of a commercial list judge: Practice Direction No 3 of 2002. Pl. made 13 attempts to plead their case (statement of claim). Needed leave to try again.
costs & delay, reduce the duration of trials, monitor the progress of proceedings, CASE FLOW PRACTICE DIRECTION & RELATIONSHIP TO UCPR Enough was enough. serial failures to articulate their case; inferred that they were
improve accessibility to the court system, manage judicial caseloads & promote The UCPR prescribe time frames & other procedures for parties/ practitioners to incapable of doing so. More than 4 yrs since proceedings has started, 15 yrs since events
the efficient use of judicial resources. Indeed case management marks a shift progress proceedings to a timely & cost effective resolution. complained of. Not yet at a point where the def was required to- respond.Chesterman J
from the traditional adversarial model, most notably by reconfiguring the judicial Rule 5 provides that the purpose of the UCPR is to facilitate the just & [74] In a very real sense the plaintiffs persistent, incompetent and ineffectual attempts to
role & reducing party control of litigation. expeditious resolution of the real issues in civil proceedings at a minimum of describe a case against the defendants is an abuse of process. It is not, I think, an
Chapter 10 of the UCPR deals with Court supervision of proceedings. expense. It also provides that in a proceeding in a court, a party impliedly exaggeration to describe the conduct of the action by the plaintiffs as scandalous. There is
- R 366 UCPR the Court may give directions about the conduct of a a responsibility on plaintiffs and those who advise them to put their cases in proper form
undertakes to the court & to other parties to proceed in an expeditious way & if and get on with them. .. The time for indulgence has passed. They must suffer the
proceeding at any time either of its own motion or on application by a party that is not done the court may impose appropriate sanctions. consequence of their own failures.
(this discretion expressed broadly in r 367 UCPR , subject to the interests The purpose of PD 17/2012 is to ensure that case are dealt with by parties,
of justice being paramount). practitioners & the court in a timely & orderly manner so that the real issues in COLLECTING/EVALUATING EVIDENCE
BASIC MODELS OF CASE MANAGEMENT dispute may be dealt with expeditiously. Prior to recent reforms
[1] Individual list or docket case is assigned to an individual judge who is PD 17/2012 applies to any civil proceedings instituted by claim in the Brisbane Experts were considered hired guns.
responsible for managing it until final disposition registry of the Supreme Court from 24 July 2012 except those cases which are on Parties might shop around for a favourable opinion, and
Pros : judge knows matter intimately the supervised case list or the commercial list. The case flow management Counter the other partys expert/s by getting one or more of their own.
Cons : judge might not like you & you are stuck with them system sets timelines by which proceedings should progress to specific stages, Example of the unjust effects this can have in practice: Lindy Chamberlain case
[2] Master List cases controlled by the court registry, assigned to different for example from service of the original claim to filing a defence and filing a Now
judges at different times for different purposes of milestones Primary obligation of an expert is to the court UCPR r 427
request for trial date and monitors the progress of proceedings against those time although how relevant this is in practice is questionable as Court is not
Pros : avoid judges you dont like lines. If the parties do not adhere to those time lines then the court may intervene.
Cons : do not know matter intimately engaging expert nor are they paying for them
A claim goes into the case flow management system once it is served on a OFFERS QUICK GUIDE
[3] Differential case management (DCM) which applies both models defendant and the affidavit of service has been filed. A notice of intention to
 COSTS
CASE APPRAISAL A CA has the same power to award costs in the dispute the Court that referred 1. CAUSE OF ACTIONS
the dispute would have had if it had heard and decided the dispute UCPR r Here the appropriate cause of action(s) is(are) .
DEFINTIONS CPA s41(1) Case appraisal is a process under the rules in which 340(1) Breach of contract CAUSING
a case appraiser provisionally decides a dispute. Negligence CAUSING (PI, Economic loss)
Practically Adjudication (3rd party determination) EFFECT OF CAS DECISION Misleading and deceptive conduct (federal)
BASICS: There is a right to legal representation UCPR r 336 A case appraiser's decision is not binding on the parties until CPA s41(2) Breach of consumer guarantees (federal)
(a) the time prescribed under the rules for filing an election to go MULTIPLE COAS
PROCEDURE AT CASE APPRAISAL to trial has passed; and Here [insert name] may wish to join the separate causes of action of (insert
Case appraiser must decide the procedure to be used at the case appraisal (b) a court, by order, gives effect to the decision. COAs) pursuant to r 60(1) UCPR.
CPA s45(1)(a) IF ELECTION TO GO TO TRIAL Here, [person] can join these causes of action because CHOOSE ONE
May adopt any procedure that will, in the case appraisers opinion, enable a A party who is dissatisfied with the case appraisers decision r60(2) UCPR
sound opinion of the likely outcome of the dispute to be reached CPA may elect to have the dispute go to trial by filing an election in (a) common question of law or fact may arise in all the proceedings;
s45(1)(b) the approved form UCPR r 343. (b) all rights to relief sought in the proceeding (whether joint, several or
Must finish the case appraisal as quickly as possible CPA s45(1)(c) A party who challenges the decision of a case appraiser under alternative) are in relation to, or arise out of, the same transaction or event or
May in special circumstances receive evidence, examine witnesses UCPR r 343 may be subject to an adverse costs order if the series of transactions or events;
(although only the Court can issue subpoenas see CPA s46) CPA s45(2) Courts decision at trial is not more favourable overall to a (c) the court gives leave, either before or after the start of the proceeding.
(a) & (b) challenger than the case appraisers decision was to the
The Court may, at any time, give directions about procedure to be used at challenge UCPR r 344(1) HOW DOE!
the case appraisal CPA s45(3) o NOTE: Court however may make another order about EXAMPLE OF MISJOINDER
POWER/JURISDICTION OF CASE APPRAISER Smith v Foley [1912] VLR 315: The defendant had been discharged from a partnership.
costs if the Court considers there are special He slandered the firm and in a separate publication slandered the plaintiff Smith. -The
The case appraiser for a referred dispute has the power of the court circumstances UCPR r 344 (2) plaintiffs (Smith & firm multiple parties) joined in one proceeding several causes of action
referring the dispute to decide the issues in dispute in the referred dispute o If ALL parties are challengers under UCPR r 343 the (multiple causes of action) against the defendant.-The action sought damages for Smith for
UCPR r 335(1) case appraisers decision has no effect on the awarding of the slander on him and damages for the firm for the slander on it. The Court considered that
However: costs. UCPR r 344(3) this was a misjoinder.-There was no common question of fact or law. Further, the terms
o CA may only give a decision that the Court could give UCPR r EFFECT OF CAS DECISION same transaction or series of transactions in relation to libel or slander must mean the
335(2)(a) If election under UCPR r 343 is not made, the parties are taken same publication or series of publications, and in this case the publications were separate;
there was no connection between the offending statements.
o CA cannot punish for contempt UCPR r 335(2)(b) to have consented to the case appraisers decision being binding -It was incorrect to join the plaintiffs and causes of action in a single proceedings.
CA can seek information UCPR r 337 on them & the decision then becomes final & binding UCPR r
A case appraiser may ask anyone for information and may, obtain, and act 341 REPRESENTATIVE PROCEEDINGS/CLASS ACTION
on, information obtained from anyone on any aspect of the dispute UCPR r AFTER CASE APPRAISAL Is there are class action?
337 (1) Case Appraiser must file a certificate about the case appraisal in the approved Here, [person] may represent other persons if [persons] have the same interest
If extra costs are involved for this, the mediator must has the leave of the form and their decision if any CPA s49(2) and the class is too large for each person to be an individual party (r 75 UCPR;
court or the parties agreement to pay extra costs. UCPR r 337 (2) Carnie v Esanda )
If the court gives leave, the court must also UCPR r 337 (3) FORMS
o order the parties to pay the extra cost; and Title - Form 1 REQUIREMENTS
o state to whom and by when the payment must be made. Claim - Form 2 (to commence proceedings) These is a unity of interests (between each member of the class and the class
The mediator must disclose the substance of the advice to the parties. Interlocutory Application Form 5 and representative), because: CHOOSE ONE:
UCPR r 337 (4) Statement of Claim - Form 16 1. There is a common interest
CASE APPRAISERS DECISION Notice of intention to Defend - Form 6 (Unconditional) and Form 7 2. There is a common grievance, and
A case appraiser's decision (includes costs if awarded) must be in (Conditional). 3. The relief sought must is beneficial to all parties represented by the
writing, but the case appraiser need not give reasons for the Defence - Form 17 representative party.
decision. UCPR R 339 (1), CPA S49(2)(A) Defence and counterclaim Form 18
However, these requirements have been given a restrictive interpretation.
However, a case appraiser may, at any stage of a case appraisal Pleadings governed by r 146 (form) and r 149 (content).
proceeding, decline to proceed further with the proceeding. EG: The dispute 1. OVERALL CHECKLIST
proves to be unsuitable for case appraisal. UCPR R 339 (2) 1. What is the Cause of Action? Markt & Co. Ltd v Knight Steamship [1910] Rep Action NOT allowed
A copy of the decision must be given to each party. UCPR R 339 (3) 2. Who are the parties? HELD: They suffered a common wrong but there was no common interest they were not
3. What is the time limitation? shipping the goods to a common destination. The claim for each shipper had to be
examined on its individual merits.
CERTIFICATE 4. Should a Claim or Application be brought? Specify
As soon as practicable after a case appraisal has finished, the case appraiser 5. Where should the originating process be commenced? FACTS: When a Russian warship sunk the ship carrying their cargo, the group could not
must file a certificate about the case appraisal in the approved form CPA s49(2) 6. Issues re service show that they all had a common interest as shippers.
(b) 7.
THEREFORE: 20th century English courts required the common interest to For the court to allow an amendment when we are out of time, there has to Cause of action estoppel is where a party is precluded from re-litigation of claims
amount to virtually the same interest, however this been given a broader be good reason. (R 376(4)(a) ). made in earlier proceedings between the same parties in respect of the same
interpretation by the High Court in Carnie v Esanda Finance The court has to use their discretion to operate and exercise their choice. subject matter Henderson v Henderson.
Whether the Court held that same interest was a significant question common to R 376(4)(b) Can only amend a claim for bringing new COA that arises on The rationale is to serve the public interest in facilitating finality in adjudication &
all members of the class and the fact that the amounts each pl. owed would be the same or substantially the same facts. You have to satisfy both of these preventing inconsistent decisions against the same defendant or on the same
different and owed under different contracts was no barrier to bringing a limbs but if you satisfy one the other one follows we have a better issue.
representative action [THEREFORE HERE] argument under limb b here. However, a defendant would not want to
have the claim amended because of principles and policies like flood gates; EXAMPLE OF COA ESTOPPEL
Carnie and another v Esanda Finance Corporation Limited (1995) 182 CLR 398 costs; and delays. You have had three years to bring an action. Can also apply to stop a party litigating an issue which he or she should have
REP ACTION ALLOWED raised by way of cross-claim in an earlier case between the the same parties ,
HELD: The High Court held this an appropriate case for a representative action Prejudicial argument here (as a defendant). They built their own case on
property damage. Now, we are in a prejudicial position because not only provided the cross-claim issues are, as a matter of substance, intimately
- High court gave the concept of representative actions broader interpretation.
- same interest a significant question common to all members of the class are we out of time, but we also have to look into a whole new case (ie. connected with the issues in the previous case & arise substantially out of the
- Fact that the amounts each pl. owed would be different and owed under different negligence). same facts.
contracts was no barrier to bringing a representative action. For an action against the solicitor we could bring an action in negligence.
Port of Melbourne Authority v Anshun :
If we are not successful under R 376 (likely because we are out of time).
FACTS: -(Pl) injured worker brought proceedings against Defs Anshun and the Authority (worker
Here, we have a fresh cause of action and time would start to run from the injured by load of girders handled by a crane hired by Anshun from the Authority).
- Borrowers from Esanda fell into arrears.
- They entered into a variation agreement with Esanda, extending the time for date they made the mistake (ie. recently). - In first proceedings, defendants sought contribution from each other. Order for 90/10%
payment. appointment of damages (in Anshuns favour).
- They claimed for themselves, and all borrowers under similar variations agreements, CONSOLIDATION OF PROCEEDINGS -Attempted second proceeding: the Authority brought proceedings against Ashun, claiming
that Esanda did not comply with the Credit Act (NSW) in making the variation, so it R 78; R 79 UCPR an entitlement to an indemnity from Anshun pursuant to the crane hire agreement. Failed to
could not claim credit charges on the extended period. The court may order that 2 or more proceedings be consolidated if raise the indemnity issue in the first action.
(a) The same or substantially the same question is involved in all the -Held: the claim for indemnity ought to have been pursued in the original proceedings. It
If requirements are met r76 UCPR proceedings; or was unreasonable for the Authority to refrain from raising its case of indemnity for
If the requirements are met one person can [bring/defend] proceedings on behalf disposition in the first action.
(b) The decision in 1 proceeding will decide or affect the other proceeding or
of others who have the same interest, on the basis that those people could have proceedings.
been parties to the proceeding r76 UCPR
(If person is not a party, court must make order under r 62 to include that person R 80 Directions
as a party). If the court orders that proceedings be consolidated or heard together or in a
Enforcement of order against representative party r77 UCPR specified sequence, the court may give a direction it considers appropriate for the
Order against a representative party may only be enforced against a person not conduct of the proceeding or proceedings
named as a party with courts leave (s 77 UCPR + s 18 CPA ) FAILURE TO JOIN A PARTY ADD IF AN ISSUE OF JOINDER
The failure to join a person as a party will normally mean that a decision made in
(S 18 Civil Proceedings Act = Order binds persons who are represented) the proceedings will not be binding upon that person. However, there is some
(2) An application for leave to enforce an order must be served on the person authority that the estoppel may prevent litigation between parties who were not
against whom enforcement of the order is sought as if the application were an all parties to the original proceedings. In Rippons case: a plaintiff may be
originating process prevented from bringing proceedings against a party later on.

ADDING A CAUSE OF ACTION; Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198: - purchasers of a business sued
r 376(4): although limitation period has expired, the court may give leave the vendors for breach of warranty in relation to the 1991 financial statements annexed to
to make an amendment to include a new cause of action if requirements the contract of sale.- They also alleged that the financial statements were misrepresentation
contrary to s 52 TPA.- The purchasers succeeded on their breach of contract claim. The s
of rule are meet. 52 claim was dismissed. The court found that the purchasers had relied on the warranty,
(a) the court considers it appropriate; and not the accuracy of the info contained in the 1991 financial statement. - The purchasers
(b) the new cause of action arises out of the same facts or then sued the accountants who had prepared the 1991 financial statements. - Court of
substantially the same facts as a cause of action for which relief has Appeal applied Anshun estoppel.- Found: fresh action against the accountants was an
already been claimed in the proceeding by the party applying for attempt to litigate issues that were either decided in or barred by the earlier proceedings.-
leave to make the amendment. Court wanted to avoid risk of inconsistent verdicts.- Note: Accountants were not parties to
the original action
Here, we have brought the wrong cause of action. HUN: IS THE COA ESTOPPED?
Should join all COAs
We may be able to amend the claim. 375 Power to amend; 376 (Plaintiff) should consider joining the (insert different COAs) as otherwise
Amendment after limitation period (Plaintiff) could be prevented from bring (insert COA) at a later date via cause
of action estoppel.
376(4) allowed to amend claim but have to be within time We need
COA Estoppel
permission from the court to amend a claim (R 375(2) ).
 2. PARTIES decided in the earlier proceedings. Therefore, court will likely apply Anshun A person using a business name must use her/his/its own name to sue ie if a
MULTIPLE PARTIES estoppel to avoid inconsistent verdicts. plaintiff
START OF PROCEEDINGS
All parties may join in a proceeding, whether as plaintiffs or defendants, who are The failure to join a person as a party will normally mean that a decision made in [4] Company
necessary and proper parties for the final resolution of a dispute: r 62 UCPR the proceedings will not be binding upon that person. Here (insert party) could be a company, which as a distinct legal entity must
sue or be sued in its own name.
As the UCPR can accommodate multiple parties r 65 UCPR , here (insert However, there is some authority that the estoppel may prevent litigation We need to know whether company is incorporated
name) should be added as a party b/c _____ between parties who were not all parties to the original proceedings Note: But once a company has filed an appearance, it must have a
solicitor on the record.
[1] Applicable to plaintiffs & defendants Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198: - purchasers of a business sued
- common question of law or fact may arise in all the proceedings r 65(1)(a) the vendors for breach of warranty in relation to the 1991 financial statements annexed to
WHO MAY BE A LITIGATION GUARDIAN
the contract of sale.- They also alleged that the financial statements were misrepresentation
UCPR Here, [persons] [parents/wife/etc.] may be their litigation guardian because
contrary to s 52 TPA.- The purchasers succeeded on their breach of contract claim. The s
- all rights to relief sought in the proceeding arise out of the same transaction or 52 claim was dismissed. The court found that the purchasers had relied on the warranty, they are not under a legal
event or series of transactions or events r 65(1)(b) UCPR not the accuracy of the info contained in the 1991 financial statement. - The purchasers
Here, [persons] [parents/wife/etc.] may be their litigation guardian because
then sued the accountants who had prepared the 1991 financial statements. - Court of
[2] Applicable only to defendants/respondents they are not under a legal incapacity and have no interest in the proceeding
Appeal applied Anshun estoppel.- Found: fresh action against the accountants was an
r 65(2)(a)(i) UCPR attempt to litigate issues that were either decided in or barred by the earlier proceedings.-
adverse to the interest in the proceeding of the person under a legal incapacity
- There is doubt as to Court wanted to avoid risk of inconsistent verdicts.- Note: Accountants were not parties to
(R 94(1) UCPR) Now HOW
The person from whom the plaintiff or applicant is entitled to relief; r 65(2) the original action.
ALSO r93(3) A party's litigation guardian who is not a solicitor may act only by a
(a)(i) UCPR or solicitor.
ARE WE DEALING WITH A SPECIAL PARTY?
The respective amounts for which each may be liable r 65(2)(a)(ii) UCPR [1] Partnership HOW to become a litigation guardian R 95(1) UCPR
- Damage or loss has been caused to the plaintiff or applicant by more than 1 IF PARTNERSHIP IS DEFENDANT: A person becomes a litigation guardian by filing in the registry the person's written
person, whether or not there is a factual connection between the claims apart - proceeding against persons alleged to be partners may be brought against the consent to be litigation guardian of the party in the proceeding.
from the involvement of the plaintiff or applicant alleged partnership in the partnership name R(2) UCPR A 83 Appointment of litigation guardian R 95(2) UCPR
Protection for innocent defendants The defendant(s) ultimately found IF PARTNERSHIP IS PLAINTIFF: If the interests of a party who is a person under a legal incapacity require it, the
innocent will be protected in costs, and the responsible party will generally bear court may appoint or remove a litigation guardian or substitute another person as
Two or more partners may start a proceeding in the partnership name
those costs directly or indirectly Smyth v McLeod litigation guardian.
Smyth v McLeod
r83(1) UCPR
No notice of intention to defend
-Plaintiff (injured passenger in a MV collision) sued 4 defendants.-At trial, the pl succeeded Note: PS name used must the name of the partnership when the COA r 96 UCPR
against D1 (driver of other vehicle) and D2 (Trans Accident Com Vict) but not against D3 arose r83(3)&(4) UCPR
If a defendant who is a person under a legal incapacity does not file a notice of
(estate, deceased driver) and D4 (insurance co).-D3 and D4 succeeded on the issues
intention to defend within the time limited, the plaintiff may not continue the
between them and the plaintiff. They were entitled to an order for costs.-TJ: satisfied the pl [2] Legal Incapacity
had done everything reasonably expected to avoid joining D3 and D4. That joinder had proceeding unless a person is made litigation guardian of the defendant.
(insert name) is under a legal incapacity because .
been made necessary by the refusal of D1 and D2 to admit liability.-Held: D1 and D2 THIS CAN ALSO BE AN ISSUE RE STATUTE OF LIMITATIONS HERE
[1] They have impaired capacity Sch 5 Supreme Ct of QLD Act
should pay the costs of the successful defs (calculated on standard basis).
[2] They are under 18 years old Sch 5 Supreme Ct of QLD Act
MISJOINDER NOW SEE TIME LIMITATIONS UNDER 4.
Accordingly as (insert name) is under a legal incapacity may only start or
Adding a party that shouldnt be added defend a proceeding only by a litigation guardian. R93(1) UCPR
Smith v Foley [1912] VLR 315: The defendant had been discharged from a partnership.
He slandered the firm and in a separate publication slandered the plaintiff Smith. -The Generally anything in a proceeding required or permitted by these rules to be
plaintiffs (Smith & firm multiple parties) joined in one proceeding several causes of action done by a party may, if the party is a person under a legal incapacity, be done
(multiple causes of action) against the defendant.-The action sought damages for Smith for only by the party's litigation guardian R93(2) UCPR
the slander on him and damages for the firm for the slander on it. The Court considered that
this was a misjoinder.-There was no common question of fact or law. Further, the terms
same transaction or series of transactions in relation to libel or slander must mean the NOW HOW TO BECOME A LITIGATION GUARDIAN
same publication or series of publications, and in this case the publications were separate;
there was no connection between the offending statements. THEN TIME LIMITATIONS UNDER 4.
-It was incorrect to join the plaintiffs and causes of action in a single proceedings.

FAILURE TO JOIN A PARTY 3] Business

In Rippons case: IF BUSINESS IS DEFENDANT:
A plaintiff may be prevented from bringing proceedings against a party later on IF REGISTERED: a proceeding may be started against a name registered on
(Rippon). the business Names Register r89 UCPR.
Here, a fresh action against [addition party/part that should have been joined] IF UNREGISTERED: a proceeding may be started against an unregistered
may be seen as an attempt to litigate the same issues that had already been business name r90(2) UCPR
IF BUSINESS IS PLAINTIFF:
 3. JURISDICTION [1] with respect to personal actions where the amount claimed not above
THINK GEOGRAPHICAL LOCATION!!!! prescribed amount ($150,000 or less): Magistrates Courts Act 1921 (Qld), s COMMENCING PROCEEDINGS
IN WHAT TERRITORIAL JURISDICTION CAN PROCEEDINGS BE 4 (a) .
COMMENCED IN? [2] for actions involving an equitable claim or demand, where the only QCAT proceedings are commenced by application QCAT Act, s 33
The proceeding can be commenced in (insert district) because [apply all relief sought is the recovery of a sum of money or of damages, and the
or part of the claim or cause of action occurred here/defendant lives amount claimed is $150,000 or less Magistrates Courts Act 1921 s 4 IDENTIFY THE PARTIES
here/defendant carries on business here/parties consented to commencing here] (c). Starting Point All parties must represent themselves unless the interests of
(UCPR r 35). SIMPLIFIED PROCEDURES IN UCPR justice require otherwise QCAT Act, s 43(1)
-But note provision for Simplified Procedures in UCPR. Apply to minor claims: Exceptions
UCPR r 35 states that proceedings must be commenced in the district: defined by Sch 4 as a claim for an amount, including interest, of not [1] You can be represented by someone else if QCAT Act, s 43(2)
in which all or part of the claim or cause of action or more than $25,000 (does not include certain claims that are within o The party is a child or a person with impaired capacity; or
in which the defendant (or one of them) lives or carries on business QCAT jurisdiction). See the UCPR rule 514. o the party has been given leave by the tribunal to be represented.
(although the parties may consent to commencement in a particular R 514(2) parties to a claim that is not a minor claim may agree in [2] The tribunal may consider the following in an application for leaveQCAT
district of the Mag Ct or D Ct) writing that simplified procedures apply. Act, s 43(3)
Note r 22(2)(c) claims filed in the DC or MC must show the court has o the party is a State agency;
jurisdiction to decide the claim LIMITS o the proceeding is likely to involve complex questions of fact or law;
IF UNSURE WHERE TO START PROCEEDINGS. MC has no power to deal with cases in which the title to land, or the validity of a o another party to the proceeding is represented in the proceeding;
Apply r 33 UCPR: A proceeding in a court may be started in any central registry devise, bequest, or limitation under a will or settlement, is in question o all of the parties have agreed to the party being represented in the
of the court Magistrates Courts Act 1921 s 7 .
proceeding.
DO THEY WANT EQUITABLE REMEDIES? DISTRICT OR SUPREME CONSENT TO JURISDICTION
-If the parties to a proceeding in relation to an amount for which the Supreme TRANSFERS
QCAT Ct: Matter started in QCAT can be transferred to a court where QCAT
HOW TO CHANGE THE VENUE (TERRITORIAL JURISDICTION) Court or District Court has jurisdiction agree that a Magistrates Court may have
jurisdiction in relation to the amount, the Magistrates Court has jurisdiction for the doesnt have authority or more appropriately dealt with by a court, either by
[1] Defendant/respondent may object if pro>ceedings are commenced in the application of a parties or on its own motion, QCAT Act, s 52 .
wrong district or venue (assuming right court, but wrong district) R 38 UCPR proceeding Magistrates Courts Act 1921 s 4A(1)
Ct QCAT: Courts can transfer matters to QCAT Act, s 53 .
-H/e Court cant, on its own initiative, decide that proceedings should have been -The agreement must between parties must be written; and be signed by each of APPEALS
started in another place, r 38(3) UCPR the parties or their lawyers; and include a statement that the parties know that the
proceeding is not otherwise within the jurisdiction of a Magistrates Court; and be QCAT decision can be appealed within 28 days, in some instances to Court of
-If objection made, court has power to dismiss the objection, the proceedings, or Appeal; in other instances to Internal Appeal Tribunal, QCAT Act, s 142
to transfer proceedings to another court, r 38(5) UCPR filed in accordance with the rules Magistrates Courts Act 1921 s 4A(2 )
A PARTY MAY ABANDON EXCESS MEDIATION
[2] Court can change venue r 39 UCPR QCAT can be refer matters to mediation, with or without consent of parties QCAT
-if at any time a court is satisfied a proceeding can be more conveniently or fairly A Magistrates Court shall have jurisdiction in a personal action if the original claim
is reduced to $50 000, or less, by payment, abandonment of excess, or Act, s 75
heard by the court in another venue, it can order the proceedings to be COSTS
transferred. otherwise, or by deducting any sum for which the plaintiff gives the defendant
credit upon the plaint being entered Magistrates Courts Act 1921 s 5 each party usually bears own costs QCAT Act, s 100
[3] Consent by both parties r 40 UCPR ENFORCEMENT OF DECISION
Via r 666 UCPR the parties may consent to the proceedings being transferred to APPEAL
An appeal generally lied to an intermediate court (& possibly to a superior Court) Decisions of QCAT can be enforced as if they were made by a court, but
another venue. enforcement proceedings are taken through Magistrates Court QCAT Act, ss
Consequence of being transferred
[2] QCAT 129-132 .
If transferred, the hearing is to take place/be decided by the court at the venue to [3] DISTRICT COURT
which it has been transferred r 41 UCPR. MUST BE A MINOR CIVIL DISPUTE
JURISICTION OF QCAT DC has original jurisdiction
THINK LEVEL OF COURT!!! Limited to claims (for personal actions, proceedings concerning land, proceedings
JUDICIAL HIERARCHIES: IN WHAT LEVEL OF COURT CAN - Tribunal has (a) original jurisdiction; (b) review jurisdiction; and (c) appeal
jurisdiction: QCAT Act, s 9 concerning equitable rights or relief) that are more than $150K but less than
PROCEEDINGS BE COMMENCED IN? $750K District Court of Queensland Act 1967 s 68
START HERE
- The tribunal has (original) jurisdiction to hear and decide a minor civil dispute CONSENT TO JURISDICTION
In QLD, the Supreme Court has all the jurisdiction necessary for the CONSENT TO JURISDICTION TO MOVE TO MAG
administration of justice in QLD (S 58 Consti of QLD). Therefore, proceedings QCAT Act, s 11
- Minor Civil Dispute: (provided amount claimed is not more than 25K, minor -If the parties to a proceeding in relation to an amount for which the Supreme
can be commenced in the supreme court, however [party] may be penalised in Court or District Court has jurisdiction agree that a Magistrates Court may have
costs if could have been heard in a lower court (s28 CPA ) civil dispute is defined in Sch 3 of QCAT Act to include:
jurisdiction in relation to the amount, the Magistrates Court has jurisdiction for the
Debt disputes (eg money lent and not repaid).
proceeding Magistrates Courts Act 1921 s 4A(1)
If no quantum is given based on the seriousness of the damage, it is Consumer and trader disputes (those arising out of a contract for the
-The agreement must between parties must be written; and be signed by each of
likely it will be in DC b/c it will be greater then 150K supply of goods and services). the parties or their lawyers; and include a statement that the parties know that the
Claim re damage to property caused by or arising out of use of a vehicle proceeding is not otherwise within the jurisdiction of a Magistrates Court; and be
DO THEY WANT EQUITABLE REMEDIES? DISTRICT OR SUPREME Claim for repair of a defect in motor vehicle filed in accordance with the rules Magistrates Courts Act 1921 s 4A(2 )
[1] MAGISTRATES COURT IF UNDER $25,000 BUT NOT COVERED BY QCAT MOVE TO SIMP.
MC has original jurisdiction PRO UNDER MAG COURT CONSENT TO JURISDICTION TO MOVE FROM SUPREME
If both parties agree, jurisdiction to try any action which might be brought or any APPEALS
counterclaim which might be made in the Supreme Court: District Court of There is no common law right of appeal
Queensland Act 1967 s 72 The appeal procedure is created by legislation
Always check the relevant legislation before commencing an appeal

THE STATE AND FEDERAL DIVIDE
A PARTY MAY ABANDON EXCESS The courts should in most situations continue to hear & determine only
Jurisdiction if plaintiff abandons excess District Court of Queensland Act proceedings that would otherwise fall within their ordinary fields of jurisdiction.
1967 s 73
APPEAL
- Has some appellate jurisdiction (dealing with matters from the Magistrates UNCERTAINTY RE JURISDICTION: CROSS VESTING OF
Court) JURISDICTION
-An appeal may lie from a decision of an intermediate court to a superior court Uncertainty between State/Territory and Commonwealth jurisdiction may
[4] THE SUPREME COURT still arise
SUPREME COURT: SUPERIOR JURISDICTION (QLD consti) THEREFORE, there is provision for cross-vesting of jurisdiction between
S 58 Supreme Courts superior jurisdiction: Courts.
- The Supreme Court has all the jurisdiction necessary for the administration of
Rationale: dont want conflicting judgments / dont want to duplicate
justice in QLD
proceedings & waste everyones time
- Unlimited jurisdiction, but subject to the Cth Constitution.
SC has original jurisdiction
STATE & TERRITORY COURTS
Has inherent original jurisdiction which is unlimited as to amount (exercised Application: how a single event might give rise to COA under both State & Cth
by a single judge) usually amounts of more than $750K. legislation (think Australian consumer law)
Do not normally hear matters within the jurisdiction of the lower Court
o if a matter is commenced in the Court which could be heard in a [1] FEDERAL CAN TRANSFER TO STATE COURT
lower Court a costs penalty may be imposed on the plaintiff Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)
SC has appellate jurisdiction from Courts lower in the hierarchy State & Territory Supreme Courts (ie all superior courts) are invested
appeals from lower courts are normally disposed of by a single judge of with federal jurisdiction
the Supreme Court Possible b/cCth constitution expressly provides for the Cth
an appeal lies from a decision of a single judge of the Supreme Court to parliament to invest state courts with federal judicial power s77(iii)
the Full Court of the Supreme Court constituted by three judges (the Cth Constitution
Court of Appeal)
CONSENT TO JURISDICTION TO MOVE FROM SUPREME [2] SUPERIOR COURT CAN TRANSFER TO SUPERIOR COURT
If both parties agree, jurisdiction to try any action which might be brought Jurisdiction of Courts (Cross-Vesting) Act 1987 (QLD)
or any counterclaim which might be made in the Supreme Court: District All superior Courts are empowered to transfer matters to other
Court of Queensland Act 1967 s 72 superior Courts; and
The State & Territory Supreme Courts also have cross-vested
COMMENCING IN THE WRONG COURT ? NOT TERRITOTIAL jurisdiction in state and territory matters
CPA 2011, ss25-31 Superior courts of the states/territories have unlimited general
Is in DC or MC Should be in SC s25(1) CPA: Supreme Court may jurisdiction (subject only to jurisdictional limits imposed by the federal
order a proceeding pending in the District Ct or Magistrates Ct be system).
transferred to the Supreme Court
Is in SC Should be in DC or MC s25(2) CPA: Supreme Court may INFERIOR COURTS
order a proceeding pending in the Supreme Ct (for which the District Court Inferior courts included in the scheme in only a very limited matter
or Magistrates Court has jurisdiction) be transferred to Court having Jurisdiction of Courts (Cross-Vesting) Act 1987 (QLD) s 8
jurisdiction. provides for the Supreme Court to remove proceedings up into the
Is in MC Should be in DC s26(1) CPA: District Court can transfer a Supreme Court for the purpose of considering transferring them in
matter pending in the Magistrates be transferred to District Court. accordance with the scheme.
Is in DC Should be in MC s26(2) CPA: District Court can transfer a
matter pending in District Court (for which Magistrates Court has
jurisdiction) be transferred to Magistrates Court.
If a matter is transferred because a claim is beyond jurisdiction, party who
commenced proceedings may be penalised in costs (costs of the other
party) s28 CPA
 4. TIME LIMITATIONS ON COMMENCING PROCEEDINGS EG: negligence, trespass nuisance or breach of duty (can be contractual duty or person wasnt aware of right to bring action b/c was hidden through fraud of
MAIN PERIODS OF LIMITATION one under statute) another
Remember time starts to run the next day THINK: Additional fact has become available after expiration of limitation
No personal injury (contract & tort) period IS THERE AN ECOMONIC LOSS (AKA LATENT DEFECT!)? USE
As this is a claim of (contract or tort) which does not consist of or include Here as this is an action for damages personal injury (or damages for injury THESE CASES
damages in respect of personal injury to any person, the period of limitation is 6 resulting from the death of any person) A Traditional View Gillespie v Elliot (1897) Damage suffered when
years s 10 LAA . Ss 31(2) LAA where it appears to the court that there is: documents were executed. Time start to run when the document was signed.
[a] A material fact s30(1)(a) LAA Start at [2] DAMAGE WAS DONE AT TIMEOF SIGNING EVEN IF THEY WERENT AWARE
Personal Injury the fact of the occurrence of negligence, trespass, nuisance or breach of OF THAT
(negligence, nuisance, trespass or breach of duty) duty on which the right of action is founded; Forgot to put Clause in documents to renew a lease lawyer did not put option to renew
As this is an action for damages for personal injury (or injury resulting from death) the identity of the person against whom the right of action lies properly so it wasnt available. H: Damage was suffered when document was drafted ie. its
always been doomed from the start, you just didnt know about it.
the period of limitation is 3 years. s 11 LAA Therefore (plaintiff) has till (insert the fact that the negligence, trespass, nuisance or breach of duty causes
date) to originate proceedings. personal injury; Here, the damage was suffered at time contract was signed (not a contingent
the nature and extent of the personal injury so caused; liability) and therefore time started to run [date of signing]. The time limitation is 6
Defamation the extent to which the personal injury is caused by the negligence, years (s 10 LAA ) therefore [have/have not] run out of time to commence
1 year generally s 10LAA , but must extend to max 3 if court considers not trespass, nuisance or breach of duty. proceedings.
reasonable to commence within 1 ( s 32A LAA )
LIMITATION AND TIME [b] of a decisive character s30(1)(b) LAA
Breach of contract (torts actionable per sae w/o proof of damage) only if a reasonable person knowing those facts and having taken the appropriate B Wardley v WA limits the principle from Gillespie. Time starts to run when the
As breach of contract is actionable per sae w/o proof of damage, this limitation advice on those facts, would regard those facts as showing
P suffers the contingent loss or liability
period commences from the time of the commission of (insert name)s wrong. that an action on the right of action would (apart from the effect of the Wardley advised WA to indemnify NAB bank wrt to funding Rotheschild. R didnt do too
Therefore (plaintiff) has till (insert date) to originate proceedings. expiration of a period of limitation) have a reasonable prospect of success well and WA had to pay the indemnity. They sued W for M/D Conduct or Misrepresentation
and of resulting in an award of damages sufficient to justify the bringing of for saying something in a meeting that induced them to do something to the bank. H: b/c
$$ Negligence (proof of damage is an essential element of the cause of action an action on the right of action; and indemnity (guarantee) is contingent on something, you cant start time before the loss may
neg, nuisance) that the person whose means of knowledge is in question ought in the
have ever eventuated. You start when it has suffered (when the guarantee could not be
As proof of damage is an essential element of negligence, the limitation period enforced). b/c it was ascertainable you start it THEN.
person's own interests and taking the person's circumstances into
commences as soon as (insert plaintiffs name) suffered damage Cartledge v account to bring an action on the right of action;
Jopling. Therefore (plaintiff) has till (insert date) to originate proceedings. Here, the damage was suffered at time damage was suffered (relied on
[c] relating to the right of action contingent liability) and therefore time started to run [when contingency was relied
Does not matter whether damage is:
PI Cartledge v Jopling upon]. The time limitation is 6 years (s 10 LAA ) therefore [have/have not] run out
[d] which was not within the means of knowledge of the applicant until a of time to commence proceedings.
Purely economic loss Hawkins v Clayton Time begins to run from date after the commencement of last year of limitation period s30(1)(c)
when suffered/ when loss occured LAA
Property Damage Pirellis case HARGANS Was within her knowledge C1 S 38(1)LAA Where:
o Time started when they ought to have been aware of the damage HELD: the onset of symptoms after the 3 year limit could not be (a) The action is based upon the fraud of the defendant; or
Pirelli characterised as decisive as she already knew of the very real possibility
INSTALLATION of a chimney (it was defective) had some cracks formed Pl saw the
(b) The right of action is concealed by the fraud of a person referred to in
of the restriction on her employment prospects. paragraph (a); or
cracks but didnt think anything of it. 7 years passed and it collapsed. Claimed for the
Facts: (c) The action is for relief from the consequences of mistake
defects in the chimney, but it was damage when it was installed. Means that youre out of
time we might have some newer case laws that we can vary how strict this rule is. But The plaintiff sustained significant injuries to her spine and bowel in a motor
this is the general test. At the time, not when you have known or ought to have known. vehicle accident. Hawkins Lawyer Error
TIME IS TICKING IN THE BACKGROUND. At the time of the accident the plaintiff was 16 years old and required to Realized error but continued fraud (intentional fraud). Time began to run when they realized
commence proceedings 3 yrs after her 18th bday. the plaintiff did not in fact the fraud Codified in s 38
CAN LIMITATION PERIOD BE EXTENDED? commence her claim until 7 October 2010. Shortly thereafter the plaintiff
[1] Persons under a disability s 29 LAA moved the court to extend the limitation period pursuant to s 31 of the Act. C2 The period of limitation shall not begin to run until the plaintiff has
As (insert name) is. Not within knowledge examples discovered the fraud or, as the case may be, mistake or could with
An infant (under 18) s 5(2) LAA the person does not know the fact at that time; and reasonable diligence have discovered it.
Of unsound mind s 5(2) & (3) LAA involuntary patient MHA, forensic as far as the fact is able to be found out by the personthe person has
disability client FDA, strict custody s 647 CC taken all reasonable steps to find out the fact before that time. S38(2) LAA Protection of 3 rd Parties re purchasing from fraudulent
They are considered to be under a disability under s 5(2) LAA . persons
Therefore as had this disability at the time the right of action arose, the period of [e] And there is evidence to establish a right of action (2) Nothing in this section enables an action to be brought to recover or enforce
limitation begins when (insert name) ceases to be under a disability (or they Conclude: Here, it is likely that the court may order an extension for 1 year a charge against or set aside a transaction affecting property that
have died). S29(1) LAA from THAT date. o in the case of fraud has been purchased for valuable consideration by a
NOTE: Does not apply if you were not under a disability at the time the person who was not a party to the fraud and did not at the time of the
COA arose S29(3)(a) LAA [3] Mistake or Fraud s38(1) LAA purchase know or have reason to believe that a fraud had been committed;
[2] Personal injuries (ordinary actions) S31(1) LAA Regular People or
 o in the case of mistake has been purchased for valuable consideration - The court considers it appropriate having regard to all the relevant
subsequently to the transaction in which the mistake was made by a person circumstances
who did not know or have reason to believe that the mistake had been made. FORMALITIES ANY DRAFTING QUESTION RE APPLICATION
The originating application must comply with r26 UCPR which requires.
[4] Amending Proceedings to add new causes of action [1] form five r26(1) UCPR
Refer to template page 1 Adding a COA [2] name as respondents all persons directly affected by the relief sought in
NOTE BEFORE COMMENCING: DUTY TO ADVISE / CONSIDER ADR application r26(2) UCPR
Professional codes of conduct and rules of court impose an obligation on [3] must list the affidavits to be relied on r26(4) UCPR
practitioners to inform clients about alternatives to litigation. [4] must specify the orders or other relief sought in the proceeding r26(5) UCPR
5. COMMENCING PROCEEDINGS [5], must specify the day set for hearing the application r26(7) UCPR
So if (client) wishes to go to Court (client) will have to initiate proceedings & a [6] if filed in the District Court or a Magistrates Court, or material filed with it, must
proceeding will only start when the originating process is issued by the Court r 8 show that ct has jurisdiction to decide the application r26(8) UCPR
UCPR .
As a general rule, any proceeding in a QLD court must be started by a claim: r 9 PROCEEDINGS INCORRECTLY STARTED VIA CLAIM/APPLICATION
UCPR . Here it appears that the proceeding should actually have originated by
(claim/application) because (insert reason from above). However (apply)
CLAIM
As the circumstances for an application are not applicable here (see r 10, 11 Proceeding incorrectly started by claim
UCPR), a claim under form 2 r 22(1) UCPR is the appropriate way to originate Rule 13 of UCPR enables the Court to order the proceeding which ought to
proceedings. There are disputed facts here as to ______. The claim must also have been commenced by application but which has instead been commenced
have attached a statement of claim in form 16 r 22(2)(b) UCPR by way of claim, and statement of claim, to continue as if started by application: r
FORMALITIES - ANY DRAFTING QUESTION RE CLAIM 13(1) & (2)(a) UCPR .
[1] Must be in form 2 r 22(1) UCPR Ct may also give directions Ct considers appropriate: r13(2)(b) & (c)
[2] Claim must state briefly the nature of the claim r 22(2)(a) UCPR Proceeding incorrectly started by application
Must show a connection b/t the plaintiff & defendant Rule 14 enables the court to order that a proceeding either incorrectly
Must show the damage which the plaintiff alleges/or the remedy or relief commenced by way of originating application continue as if started by claim OR
sought. may more conveniently continue as if started by claim: r 14(1) UCPR
[3] have attached to it a statement of claim: r 22(2)(b) UCPR
in form 16 and comply with chapter 6 of UCPR, includ. r 146 UCPR
[4] contain a statement telling the defendant (here Y) the relevant time limited for
filling a notice of intention to defend, which is 28 days after service 23(a) UCPR
[5] contain a statement on it telling (Y defendant) that if defendant does not file
a notice of intention to defend within the time, a default judgement may be
obtained against the defendant without further notice. 23(b) UCPR
[6] claims filed in the DC or MC must show the court has jurisdiction to decide
the claim r 22(2)(c)

APPLICATION
An initiating application under Form 5 , not a claim would be more appropriate
here b/c (apply one):
[1] The only, or main issue in the proceeding is an issue of law & a substantial
dispute of fact is unlikely: r 11(a) UCPR
[2] There is no opposing party to the proceeding, or it is not intended to serve
any person with the originating process r 11(b) UCPR (eg probate or equity
matters)
[3] urgent relief sought (there is insufficient time to prepare a claim eg
injunctive relief): r 11(c) UCPR
The Application process initiates a summary procedure which utilises affidavits
rather than pleadings.
ORAL APPLICATION
Proceedings may be started by oral application by practitioner if R 12 UCPR :
- Urgent relief is sought and
- Practitioner undertakes to file an application within the time directed by the
Court and
 6. SERVICE Personal Service is performed by giving the document, or copy to (def) OR if Under r 110 UCPR a document required to be served personally on a prisoner
STALE CLAIM (def) does not accept the document, or copy, the party serving it may serve it by must be served on
[1] RENEWING putting it down in the persons presence and telling him or her what it is. R 106 (a) if the public trustee is manager of the prisoner's estate under the Public
If. UCPR Trustee Act 1978, part 7 and the proceeding is of a property nature or for the
[a] service will not be effected within 12 months OR not necessary to show to the person served the original of the document. recovery of a debt or damagethe public trustee; or
[b] claim has just expired R 106(3) UCPR (b) if paragraph (a) does not apply and the prisoner has a litigation guardian
(plaintiff) can apply to the Court to renew it as otherwise the claim will become the prisoner's litigation guardian; or
stale r 24 UCPR . The Court may, at any time, extend a time set under these [2] CORPORATION (c) otherwisethe person in charge of the prison in which the prisoner
rules or order under R 7(1) UCPR) Under r 107 UCPR personal service of a corporation means the document is is imprisoned.
Such an interlocutory application would be made ex parte, supported by affidavit must be served in the way provided for the service of documents under the [7] BUSINESS (no registered office) (aka UNREGISTERED)
r24 UCPR , and may be brought under a form 9 r31(2) UCPR provided it is Corporations Act which is either leaving it at or posting to the registered office; or Under r 113 UCPR service in relation to a business with unregistered trading or
signed and filed r31(1) UCPR personal delivery on a director. business name and proceeding is started in the name or style under which the
Such a claim may be renewed by By the Registrar for the first five years OR By person carries on the business THEN the originating process may be served by
leave of the Court after that need to show (evidence most likely to be from [3] PARTNERSHIP leaving a copy at the persons place of business with a person who appears to
solicitor) r 24 UCPR Under r 114(1) UCPR have control or management of the business at the place.
o That efforts have been made to serve the defendant/s Service in relation to a partnership an originating process against a partnership
o Difficulties encountered/ reasons why not yet served OR must be served [8] MAGISTRATES COURT
o other good reason (a) on 1 or more of the partners; (if served this way then each of the partners who Under r 111 UCPR (1) All documents in a Magistrates Court proceeding,
were partners in the partnership when the originating process was issued, including a document required by these rules to be served on a person
Expiration of Limitation Period including a partner who was outside Queensland at the time, is taken to have personally, may, unless the court otherwise orders, be served under part 4
The court has the power to renew the originating process even if the limitation been served r114(2) UCPR OR (2) However, a document required by these rules to be served on a person
period has expired, but it is a factor that the court will take into account in the (b) on a person at the principal place of business of the partnership in personally must not be served under rule 112(1)(b), (c), (d), (e) or (g)
exercise of its discretion Krawszyk . Queensland who appears to have control or management of the business there; GO TO ORDINARY SERVICE BELOW r112 UCPR.
OR SERVICE AFTER ORIGINATING PROCESS
[2] ATTEMPT AT SERVICE (c) for a partnership registered under the Partnership (Limited Liability) Act Service of (document/interlocutory app/reply/answer/etc) can be done via
Here the claim (or other originating process) has not been served within 12 1988 at the registered office of the partnership. ordinary service as set out in
month of the date of filing in the registry, therefore it is said to be stale r 24 ORDINARY SERVICE R112 UCPR .
UCPR [4] YOUNG PEOPLE (a) leaving it with someone who is apparently an adult living at the relevant
A stale claim may still be may still be effective to commence proceedings even if Young person means an individual who is under 18 years Sch 5 address;
it is stale at the time of service r 22-24 UCPR Supreme Court Act QLD (b) if there is no-one at the relevant addressleaving it at the relevant address in
o BUT only where it is proper to renew the originating process: Gilles v Under r 108(1) UCPR, a document required to be served personally on a young a position where it is reasonably likely to come to the person's attention;
Dibbets person must be served instead on the person who is the young person's litigation (c) if the relevant address is within a building or area to which the person serving
o The irregularity in serving a stale original process is also waived if the guardian for the proceeding to which the document relates. the document has been denied accessleaving it at the building or area in a
defendant enters an unconditional notice of intention to defence: If no litigation guardian: position where it is reasonably likely to come to the person's attention;
Sheldon v Brown R 108(2) UCPR If the young person does not have a litigation guardian for the (d) posting it to the relevant address;
Def cannot refuse to accept service of stale claim proceeding the document must be served instead on (e) if the person has given
Brealey v Board of Management Royal Perth Hospital (1999) not open to the (a) the young person's parent or guardian; or (i) a fax number under these rulesfaxing the document to the
respondent in that case to refuse to accept service. The Respondent should have entered a (b) if there is no parent or guardianan adult who has the care of the person; or
conditional appearance and applied to have the Court set aside the service, a matter within young person or with whom the young person lives. (ii) an email address under these rulesemailing the document to the
the discretion of the Court. person;
[5] PERSON WITH IMPAIRED CAPACITY (mentally ill) (f) if the solicitor for the person has
THEORY means a person who is not capable of making the decisions required of a litigant (i) an exchange box at a document exchangeleaving the document
Definition of Service: The procedure by which a plaintiff informs a defendant of for conducting proceedings or who is deemed by an Act to be incapable of in the exchange box or another exchange box available for documents
the claim being made against him or her. conducting proceedings. Sch 5 Supreme Court Act to be transferred to the solicitor's exchange box; (taken to have
Objective of Service : Under r 109 UCPR a document required to be served personally on a person been served on the business day after it is left in the document
Natural Justice: Bring a claim to the notice of the defendant(s) with impaired capacity (the impaired person) must be served instead on exchange box r 112(2))
Notify the defendant(s) how to respond. (a) the person who is the impaired person's litigation guardian for the (ii) a faxfaxing the document to the solicitor; or
Relevance of Service re Originating Proceedings: Jurisdiction of the court is proceeding to which the document relates; or (iii) an email addressemailing the document to the solicitor;
founded upon the service of the originating process Laurie v Carroll (b) if there is no-one under paragraph (a)a person who is entitled (g) an electronic means prescribed by practice direction.
under rule 94(2) to be the impaired person's litigation guardian for the
SERVICE OF ORIGINATING PROCESS proceeding to which the document relates; or RELEVANT ADDRESS for Ordinary Service r112(3) UCPR
As the (claim/application) is an originating process, it must be served (c) if there is no-one under paragraph (a) or (b)an adult who has the relevant address, of a person to be served, means
personally on (insert def). R 105 UCPR AS DEFENDANT IS A.. care of the impaired person. (a) the person's address for service; or
(b) for an individual who does not have an address for service
[1] NORMAL PERSONS (also some special people) [6] PRISONERS (i) the individual's last known place of business or residence; or
 (ii) if the individual is suing or being sued in the name of a partnership - The court may make an order under this rule even though the person to be (i) all or part of which was suffered in Queensland; and
the principal or last known place of business of the partnership; or served is not in Queensland or was not in Queensland when the proceeding (ii) caused by a tortious act or omission (wherever happening);
(d) for a corporation that does not have an address for serviceits head started. (n) a proceeding for a contribution or indemnity for a liability enforceable in the
office or its principal or registered office. Miscamble v. Phillips , the Court said at p. 274 that the primary object of court;
SERVICE & SOLICITORS substituted service is: (o) a proceeding for an injunction ordering a defendant or respondent to do, or
A solicitor may accept service of a document for a party rule 115 UCPR By....... to bring to the knowledge of the person in respect of whom substituted service is refrain from doing, anything in Queensland (whether or not damages are also
The solicitor must make a note on a copy of the document to the effect sought, the whole proceeding so that he can take steps as he thinks proper to claimed);
that the solicitor accepts service for the party. protect his interests and rights. It is not proper to substitute service of (p) a proceeding properly brought in Queensland against a person in which
The document is taken to have been served on the party, unless the party process...when there is no belief that the service will bring the proceedings to the another person outside Queensland is a necessary or proper party to the
proves the solicitor did not have authority to accept service for the party. knowledge of a person or of any person representing his interests. proceeding;
This rule applies whether or not personal service of the document is (r) a proceeding in which a person has submitted to the jurisdiction of the court;
required under these rules. MAIN TEST FROM Porter v. Freudenberg (s) a proceeding in which the subject matter of the proceeding, so far as it
In order that substituted service may be permitted, it must be clearly shown that concerns the person, is property in Queensland;
INFORMAL SERVICE the plaintiff is in fact unable to effect personal service and that the writ is likely to (w) a proceeding about a person under a legal incapacity who is domiciled or
R 117 Informal service reach the defendant or to come to his knowledge if the method of substituted present in, or a resident of, Queensland;
[a] If document is not served as required but doc came into the possession of the service which is asked for by the plaintiff is adopted. (2) Each paragraph of subrule (1) is a separate ground for deciding whether an
person to be served; AND originating process may be served outside Australia under this rule.
[b] the court is satisfied on evidence before it that the document came into the QUESTION - what might work? (3) Also, this rule does not limit or extend the jurisdiction a court has apart from
persons possession on or before a particular day; advertising - how can you satisfy a judge that the individual defendant will this rule.
THEN: the court may, by order, decide that the possession of the document is read the ad?
service for these rules on the day it came into the persons possession or another service on the lawyer - how can you satisfy judge that defendant will SPECIAL SERVICE RULES
day stated in the order. contact lawyer?
service on relative Rule 101 No Service on Good Friday or Christmas Day
SERVICE IN A DIFFERENT STATE leave at place of work
SERVICE AND EXECUTION OF PROCESS ACT 1992 (CTH) leave at home Rule 103 Service after 4pm deemed to occur on the next business day
Housekeeping of SEPA other?
s 13: Applies to civil proceedings The order (for substituted service) should be obtained before resorting to irregular
s 15: (1) An initiating process issued in a State may be served in another State. service, but ratification of the irregular service is possible after the event.
(State is defined to include Territories: s 5)
OVERSEAS SERVICE OF ORGINATING PROCESS
Service the SEPA R 124
s15(2) Service must be effected in the same way as service of such an initiating (1) An originating process for any of the following may be served on a person
process in the place of issue. outside Australia without the court's leave
[1] Company s15(3) as per s 9 of the SEPA (a) a proceeding based on a cause of action arising in Queensland;
[2] Body Corporate s15(4) as per s 10 of the SEPA (b) a proceeding about
[3] On a Body Politic (i) property situated in Queensland; or
(eg the Commonwealth or a State)s15(4) must be effected in the same way in (ii) obtaining evidence for a future claim relating to property in Queensland;
which process of the Supreme Court of the State in which service is to be (c) a proceeding in which an Act, deed, will, contract, obligation or
effected may be served on a body politic. liability affecting property in Queensland is sought to be interpreted,
Formalities - SEPA rectified, set aside or enforced;
s 16: need prescribed noticed attached to process served. Regulation 4 (g) a proceeding relating to a contract
-prescribed notice is Form 1 (i) made in Queensland; or
s 17: time for appearance - longer of 21 days or time allowed by issuing court (ie (ii) made by 1 or more parties carrying on business or residing in Queensland; or
28 days) (iii) made by or through an agent carrying on business or residing in Queensland
on behalf of a principal carrying on business or residing outside Queensland; or
SUBSTITUTED SERVICE (iv) governed by the law of Queensland;
If a plaintiff cannot effect prompt personal service s/he may apply for substituted (h) a proceeding based on a breach of contract committed in
service: UCPR r 116. Queensland, regardless of where the contract was made and whether or
- normal service must be impracticable not the breach was preceded or accompanied by a breach (wherever
- The court may specify the steps to be taken, instead of service, for bringing the occurring), rendering impossible the performance of a part of the contract
document to the attention of the person to be served. that ought to be performed in Queensland;
- can also specify that the document is to be taken to have been served on the (i) a proceeding based on a contract containing a condition by which
happening of a specified event or at the end of a specified time. the parties agree to submit to the jurisdiction of the court;
(k) a proceeding based on a tort committed in Queensland;
(l) a proceeding for damage
 7. NOTICE OF INTENTION TO DEFEND - the court may give directions as to the time for filing a notice of intention to - On application by a person seeking to enforce an order against
(Insert defendants name) has 3 options now that he has been served with the defend or for attendance before the court or otherwise. partners in the partnership name, the court may give leave for the
originating process: - a copy of the order; each affidavit made in support of application for order; & order to
1. Do nothing (in which case a default judgment may be entered) unless Ct otherwise orders, an exhibit mentioned in affidavit.
2. Enter an unconditional NITD, including that the action is to be defended R 129 UCPR How service outside Australia to be performed [5] Third Parties
& providing an address for service of all future documents - parts 1 to 5 of UCPR apply to the service. A third party is required to file NITD (r 197 UCPR )
3. Enter a conditional appearance - However, nothing in these rules, or in any order of the
court made under these rules, authorises or requires the doing of anything in a [6] Parties added/ substituted as def
[1] CONDITIONAL NOTICE OF INTENTION TO DEFEND country in which service is to be effected that is contrary to the law of the country. required to file NITD (r 207 UCPR )
Theory: A conditional notice to defend provides a method of approaching the LATE FILING?
Court while preserving rights while protecting against a default judgment. Write : If (def) files his NITD late, (Plaintiff) may seek default judgment [7] Business Name
Write: Here (def) would enter a conditional notice of intention to defend under - H/e A defendant may file and serve a NOITD at any time before judgment NITD must be done in individual name, not business name r 91 UCPR
form 7 on the basis of objecting to the irregularity of (insert irregularity) OR even if the def is in default of r 137 UCPR r138 UCPR
objecting to courts jurisdiction, (insert Ct). FILING & SERVING NITD
However (def) will be bound by the Cts decision if it determines it has jurisdiction FORMAL REQUIREMENTS FOR NITD Filing: A NITD must be filed in the registry from which the claim was issued r
(has power to waive irregularities in service). - Be in the approved form (signed and dated) r 139 UCPR 141 UCPR
- Must have the defendants defence attached to it r 139 UCPR Service: A sealed copy of the NOITD must be served at the plaintiffs address for
[2] UNCONDITIONAL NOTICE OF INTENTION TO DEFEND UNLESS it is a conditional NOITD r 144 UCPR service: r 142 UCPR
Write: If (def) enter an unconditional NITF under form 6, (def) waives any - the defendants address for service (& that of the defendants solicitor (a) on the day which it is filed; or
irregularity in claim and indeed amounts to a submission to the jurisdiction of the must be given) r 140 UCPR (b) as soon as practicable after it is filed
Court. - Ordinary service will suffice r 142 UCPR (hand, post, fax, DX, e-mail)
- P does not need to prove service (makes good service of stale claim) WHO CAN ENTER NITD?
[1] Normal defendant
TIMING TO FILE NITD - only a def may enter NITD (either in person or through a solicitor)
[1] If claimed served within QLD r 136(1) UCPR
(DEF) wishes to file a NOITD he must do so within 28 days of service of - in addition, by any person allowed by special leave of the judge
originating process r137(1) UCPR
[2] Def = infant or person under disability
[2] If claimed served interstate As (def) requires a litigation guardian r 93(1) UCPR , the def can only file a
r123 UCPR must be served in accordance with the Service and Execution of NITD via their litigation guardian r 136(2) UCPR
Process Act 1992 (Cwlth). And has not filed a NOITD, (plaintiff) may not continue proceedings unless
Section 17 of SEPA states that (def) has (insert whichever is the longer of) to a person is made lit guardian of def r 96 UCPR
file their NITD:
21 days; or [3] Corporations
The period which would have been permitted if the process had been A corporation enter a NITD through its solicitors, unless it obtains leave of the
served in the place of issue (28 days for Qld), or Court: rr 135, 136 UCPR
Such shorter period as the court of issue, on application allows.
[4] Partnership
[3] If claim served outside Australia r124-129 UCPR A partner must appear individually in her/his own name in the NITD QLD r 85
r124 UCPR : Lists all circs where you can w/o leave service outside Aus UCPR
For example:
- a proceeding based on a cause of action arising in Queensland; NITD: R 85 UCPR
- a proceeding relating to a contractmade in QLD; or made by 1 or more (1) Despite an originating process being against a partnership, a notice of
parties carrying on business or residing in QLD; or governed by the law of intention to defend must not be filed in a partnership name.
Queensland; (2) A partner who is served with an originating process against a partnership may
- a proceeding based on a tort committed in Queensland. file a notice of intention to defend only in the partner's own name.
R 125 UCPR relates to serving Counter claim or third party notice (applies Note
all the same circs as per r 124 See rule 114 (Service in relation to a partnership).
R 126 UCPR Setting aside service The court must, on application by a (3) However, the proceeding continues in the name of the partnership.
defendant or respondent, set aside service of an originating process under this Defence: r87 UCPR
part if service of it is not authorised under rule 124. Except for a person who files a conditional notice of intention to defend under rule
R 127 UCPR Service of other process by leave The court may, by leave, 86, a person may file a defence for the partnership in the partnership name only.
allow service outside Australia of an originating process for a proceeding under Enforcement: r88(1) UCPR
an Act if service is not authorised under rule 124;
R 128 UCPR Requirement for Order for service outside Australia
 8. Protocol after NITD is served - Any reply must be filed & served with 14 days after the day of the service of the
[1] PLAINTIFFS RESPONSE TO NITD - REPLY answer to CC r164 UCPR
- (Plaintiff) should respond to allegations made by a def via a reply
- Unless the Court orders otherwise, any reply must be filed & served within 14 [3] THIRD PARTY NOTICE TERMINOLOGY
days after the day of the service of the defence r 164(2) UCPR DEFENDANT WANTS TO BLAME SOMEONE ELSE Sch 4:
[2] COUNTERCLAIM BY DEF Plaintiff defined to include a defendant who serves a counterclaim
(Def) may also commence a counterclaim in relation to a cause of action arising Theory : Being able to join TPs is consistent with r 5 UCPR, as it allows all issues Defendant defined to include a plaintiff who is served with a
after the issue of the claim. between all parties to be thrashed out in the same proceedings. counterclaim.
The CC is treated as an action in its own right and if plaintiff discontinues their Write: A TPN is a procedural device whereby a defendant can join in the action Distinguish counterclaims from Third Party Notices. (TPN, read rr 191-207)
proceedings, then CC remains on foot and can proceed to trial. r 176 UCPR any person against whom the defendant claims relief related to the plaintiffs
claim. [4] INTERLOCUTORY APPLICATION
[1] Counterclaim against the plaintiff r177 UCPR USE WHEN: (Def) may file a third party notice if (def) wants to: r192 UCPR An application in a proceeding that has commenced is known as an interlocutory
This is in line with r 5 of UCPR as it facilitates the joint trial of two claims & to (a) claim against a 3rd party re contribution or indemnity; or application and may be brought in any proceeding under a form 9 r31(2) UCPR
enable the Court to pronounce a final judgment in the same action on both claim (b) claim against 3rd party relief provided it is signed and filed r31(1) UCPR , and generally is supported by
& counter claim. (Ordinary service) (i) relating to or connected with the original subject matter of the proceeding; affidavits under form 46.
and
[2] Counterclaim against someone who is not the plaintiff R 178(1) UCPR (ii) substantially the same as some relief claimed by the plaintiff; or FORMALITIES - ANY DRAFTING Q RE INTERLOCTORY APP
AKA 3 RD PARTY COUNTERCLAIM (c) necessary to join TP to answer any Q relating to original subject [1] must be in Form 9: r31(2) UCPR
THIRD PARTY IS LIABLE WITH THEPLANITIFF SUING PERSON YOU matter [2] Must name as respondent any party whose interests may be affected by the
BOUGHT FROM + THE MANUFACTURER) (d) granting of the relief sought r31(3) UCPR
TO BRING A CC AGAINST A NON PARTY, YOU MUST ALSO MAKE THE P A FORMALITIES (IF ISSUE GO TO RR191-207) [3] must be filed & served at least two business days before the day set for
PARTY TO THE CLAIM CONTENT OF THIRD PARTY NOTICE hearing the application r31(5) UCPR
(Def) may make a counterclaim against a person other than the plaintiff R 193 UCPR
(whether or not already a party to the proceeding) if - must be in the approved form (form 14) CAN BE AN ORAL APPLICATION
(a) the plaintiff is also made a party to the counterclaim; and - state briefly the nature of the claim made or relief sought against the third party; You may apply to the Court for an order at any time without the need for filing &
(b) either and serving documents by making an oral application R 32(1)(a) UCPR.
(i) def alleges that the other person is liable with the plaintiff for the subject - attach a statement of claim to the notice, unless the court otherwise orders. H/E Ct may impose conditions required in the interests of justice to prevent
matter of the counterclaim; or prejudice to the other parties.
(ii) def claims against the other person relief relating to or connected with the FILING THIRD PARTY NOTICE No requirement oral app. must be followed by a written application in the
original subject matter of the proceeding. R 194 UCPR same form & given to other party, but Ct could follow up & ask why you
Service: Personal service (on a person not already a party) R 178 (2) UCPR & Unless court gives leave havent
Chap 4, r105 UCPR - TP notice may not be filed by a def until def has filed a defence; and
NOTE: Courts discretion: The court may, at any time, exclude a CC from the - TP notice must be filed within 28 days the prescribed period
proceeding in which the counterclaim is made and give the directions the court -An application for leave to file a third party notice must be served on the plaintiff.
considers appropriate about the conduct of the counterclaim (eg if inconvenient)
r 182 UCPR CONSEQUENCES OF 3 RD PARTY NOTICE
FORM OF CC - The relationship between a defendant who issues a TPN and the TP is that of
A counterclaim must: r179 UCPR plaintiff and defendant.
- be in the approved form and; - TP should enter an appearance (NITD/defence) or may suffer default judgment,
- must be included in the same document and served within the same r 197 UCPR .
time as the defence - If original plaintiff is successful against original defendant, a successful third
ANSWER TO COUNTERCLAIM BY ORIGINAL PLAINTIFF OR OTHER party action allows the defendant to claim an indemnity or contribution from the
DEFENDANT TO A COUNTERCLAIM TP.
A defendant to a counterclaim (original plaintiff & possibly someone else) may - A third party may counterclaim against the defendant r 200 UCPR
plead to the counterclaim by serving an answer to the counterclaim under these - A third party may join a fourth party, and so on.
rules. R 180 UCPR - A third party may join a fourth party, an so on.
-An Answer must be filed and served (a) within 14 days after the day the - Remember, if there is a counterclaim, a plaintiff in the original action becomes a
counterclaim is served; or (b) if the defendant to the counterclaim is not a party to defendant may in turn issue a TPN against another.
the original proceeding, 28 days after the day the counterclaim is served r 164
UCPR [4] CLOSE OF PLEADINGS
-If the plaintiff fails to serve an Answer, a default judgment may be entered. Pleadings close after the last pleading has been delivered r 169 UCPR
- The pleadings in a proceeding close (a) if a pleading is served after
REPLY ANSWER CC the defence or answer to a counterclaim on service of the pleading;
- A def may reply to an answer or (b) otherwise 14 days after service of the defence. If no reply is
delivered
 9. DEFAULT JUDGMENT APPLIES: if plaintiff's claims for relief against def in default include 2 or more of
WHAT IT APPLIES TO the claims for relief mentioned in rules 283 to 286 , and no other claim.
THEN: plaintiff is entitled to a judgment against def on all or any of the claims for
[1] Def/respondent not responding to claim/application relief the plaintiff could request under those rules if that were the plaintiff's only
If (def) has failed to file a NITD (usually within 28 days), (plaintiff) may seek claim for relief against the defendant.
default judgment r 281 with a form 25, accompanied by draft judgment under
form 26. COSTS ONLY DEFAULT JUDGMENT
(Def) can still put in a NITD, and if this happens before (plaintiff) has applied R 289
for a default judgment, the (plaintiff) cannot afterwards apply for default APPLIES WHERE: plaintiff is entitled to judgment against a defendant in default
judgment r 281 with a form 25, accompanied by draft judgment under form 26. and the defendant satisfies the plaintiff's claim for relief.
THEN: plaintiff may file a request for a judgment against the defendant for costs
[2] Plaintiff fails to provide answer to counter claim alone.
If a (plaintiff) fails to defend a counterclaim with an Answer (usually within 14 AND: court, as constituted by a registrar, may give judgment.
days), a default judgment may be entered against the (plaintiff) r 281

STEPS TO SATISFY SETTING ASIDE DEFAULT JUDGMENT

STEP [1] Rule 290: The court may set aside or amend a judgment by default
Prove that defendant was served with originating process r 282 which can be Defendant must:
done through affidavits (form 46 ) - Give a satisfactory explanation for the failure to appear
- Establish no unreasonable delay in making the application
DJ you can claim for Debt and interest - Demonstrate that s/he has a prima facie defence on the merits.
Cook v D A Manufacturing = Courts discretion is wide & unfettered.
[a] Debt or liquidated demand - rule 283 IF SUCCESSFUL IN SETTING ASIDE:
As a debt is owing (liquidated demand) The plaintiff may file a request for Def will be ordered to:
judgment for that amount AND 1. File and serve a defence within a stipulated time
[a] Interest 2. Pay costs.
May abandon interest - Defendant usually ordered to pay the plaintiff's costs on obtaining
claim an agreed rate where one is agreed. (eg loan). rule 283(4)(a) the default judgment and plaintiffs costs on the application to set
accept a rate not higher than that set in the PD (obtainable from the aside.
Registrar); rule 283 2(a) & 4(b)
- for the purposes of s 58 of the Civil Proceedings Act 2011, interest
at the rate specified in the claim or in PD 7 of 2013. rule 283(4)(a)
High Interest?
If (plaintiff) wishes to ask the Court for higher interest rate and must provide
evidence to justify this, however this may take the claim outside may take the
main claim into the unliquidated category. R 283(2)
[b] Costs: for issuing claim, for obtaining judgment, for any other fees and
payments, to the extent they have been reasonably incurred and paid. rule
283(2)(b)
[c] Applicable if part of debt has been paid : WHERE part payment has been
made, need affidavit of debt to set out what was paid and what is now owing

Damages that need to be quantified

[b] Unliquidated Damages - rule 284
As the (plaintiff) must apply to the Court here for an assessment of damages
regarding the (BOK or NEG) , the damages are for an unliquidated sum and are
governed by rule 284.

Accordingly (plaintiff) may file a request for a judgment conditional on the

assessment of damages by the court under chapter 13, part 8 (rr 507-512)
and for costs and the court, as constituted by a registrar, may give judgment
SC: Where is step 2?
[3] COMBINATION - RULE 287
r 287
 10. OTHER APPLICATIONS (b) award costs to a party for attending, or relieve a party from attending, a part of already been claimed in the proceeding by the party applying for
[1] SUMMARY JUDGMENT a trial in which the party has no interest; or leave to make the amendment.
SJ FOR P AGAINST DEFENDANT (c) stay the proceeding against a defendant or respondent until the trial between We may be able to amend the claim. 375 Power to amend; 376
An interlocutory application may be brought here under a form 9 r31(2), the other parties is decided, on condition that the defendant or respondent Amendment after limitation period
supported by affidavits under form 46. Here we would be making an application against whom the proceeding is stayed is bound by the findings of fact in the trial 376(4) allowed to amend claim but have to be within time We need
for summary judgment against (defendant). against the other defendant; or (d) make another order appropriate in the permission from the court to amend a claim (R 375(2) ).
Even though (def) has filed a NITD, under r 292 the court may give judgment for circumstances. For the court to allow an amendment when we are out of time, there has to
(plaintiff) (& therefore of course against the defendant) here if it is satisfied that be good reason. (R 376(4)(a) ).
2(a) the defendant has no real prospect of successfully defending all or a part of ADD, SUBSTITUTE OR REMOVE PARTIES The court has to use their discretion to operate and exercise their choice.
the plaintiff's claim; and An interlocutory application may be brought here under a form 9 r31(2), R 376(4)(b) Can only amend a claim for bringing new COA that arises on
2(b) there is no need for a trial of the claim or the part of the claim. supported by affidavits under form 46. the same or substantially the same facts. You have to satisfy both of these
Here Apply [1] REMOVING A PARTY r 69(1) UCPR limbs but if you satisfy one the other one follows we have a better
THE DEFENDANTS CASE IS GARBAGE. WASTE THE COURTS TIME. The court may at any stage of a proceeding order that a person who has been argument under limb b here. However, a defendant would not want to
NO BASIS improperly or unnecessarily included as a party, or who has ceased to be an have the claim amended because of principles and policies like flood gates;
SJ FOR D AGAINST PLAINTIFF appropriate or necessary party, be removed from the proceeding costs; and delays. You have had three years to bring an action.
An interlocutory application may be brought here under a form 9 r31(2) , Prejudicial argument here (as a defendant). They built their own case on
supported by affidavits under form 46. Here we would be making an application [2] INCLUDING A PARTY r 69(1) UCPR property damage. Now, we are in a prejudicial position because not only
for summary judgment against (plaintiff). It must be served on the respondent 2 The court may at any stage of a proceeding order are we out of time, but we also have to look into a whole new case (ie.
business days before date set for hearing. That a person may be included as a party IF negligence).
Under r 293, here (def) could (after filing NITD) apply to the court for judgment Their presence before Court is necessary to enable the court to For an action against the solicitor we could bring an action in negligence.
against (plaintiff). The court may give judgment for the defendant against the adjudicate effectually and completely on all matters in dispute in the If we are not successful under R 376 (likely because we are out of time).
plaintiff If the court is satisfied r 293(2) : proceeding; Here, we have a fresh cause of action and time would start to run from the
(a) the plaintiff has no real prospect of succeeding on all or a part of the plaintiff's Their presence before the court would be desirable, just and convenient date they made the mistake (ie. recently).
claim; and to enable the court to adjudicate effectually and completely on all matters
(b) there is no need for a trial of the claim or the part of the claim. in dispute connected with the proceeding.
THE PLAINTIFF HAS A WEAK CASE, INTEREST OF JUSTICE, DONT AMENDING PLEADINGS
WASTE COURT TIME An interlocutory application may be brought here under a form 9 r31(2),
[2] DISMISSING CLAIM supported by affidavits under form 46.
An interlocutory application may be brought here under a form 9 r31(2) , R 375 states that any stage of a proceeding, the court may allow or direct a
supported by affidavits under form 46. HERE we are seeking an application to party to amend a claim a pleading, an application or any other document in
dismiss a claim under r 280. It must be served on the respondent 2 business the way and on the conditions the court considers appropriate. Here what must
days before date set for hearing be amended is
Generally, the party seeking amendment must satisfy the court that its
APPLIES: If plaintiff / applicant defaults in taking a required step, defendant / opponent will not suffer prejudice by reason of the amendment which
respondent may apply to the court for an order dismissing the proceeding for cannot be remedied by an adjournment, an award of costs or in some
want of prosecution R 280 (1) other way.
THEN: IF MISNOMER:
- court may dismiss proceeding R 280 (2) If there is misnomer of a party, the court must allow or direct the amendments
- order dismissing proceeding may be set aside only on appeal or by necessary to correct the misnomer. R 375(3) even where the effect of the
agreement R 280 (3) amendment is to add a new party.
- court may set aside or vary order made in absence of the Consequence: The amendment operates retrospectively to the date of
Plaintiff/applicant R 280 (4) commencement of proceedings (to overcome any difficulties created by any
limitation period). R 376
[3] PROCEDURAL APPLICATIONS UCPR r 74(5 ): for a limitation period, a proceeding by or against a new
party (whether by addition or substitution) is taken to have started when
An interlocutory application may be brought here under a form 9 r31(2), the original proceeding started, unless the court orders otherwise.
supported by affidavits under form 46. Here we would be making an application
to APPLY ADDING A CAUSE OF ACTION;
r 376(4): although limitation period has expired, the court may give leave
JOIN/SEVER PARTIES /COAS to make an amendment to include a new cause of action if requirements
Rule 68 UCPR: if the inclusion of a party or cause of action may delay the trial of rule are meet.
of the proceeding, prejudice another party or is otherwise inconvenient, the court (a) the court considers it appropriate; and
may at any time: (b) the new cause of action arises out of the same facts or
(a) order separate trials; or substantially the same facts as a cause of action for which relief has
 11. DISCLOSURE [1] Does NOT include physical evidence in response to the report of another expert; or
ISSUE: What documents need to be disclosed? The bloody knife, smoking gun, if directed to issues that first emerged in the course of the
LIST: The stolen item etc trial; or
Trust account ledgers in law firm not protected Packer if the court gives leave
PARTY DISCLOSURE [2] Client can waive the privilege [3] Report will be allowed in if disclosure has been made in the
STEP [1]: APPLICATION [3] Public Policy Exceptions (eg whereabouts of a child: Re Bell; ex parte appropriate time frame to other party R 429 / r 427(2)
WHEN DISCLOSURE APPLIES Lees ) [4] Report will only be allowed in as chief if expert can be called in for
R 209 states that the UCPR rules relating to disclosure apply to cross examination R 427 (3)
a proceeding started by claim; Exception to LPP: Statutory abrogation of the rule: [5] Report will be allowed in if the report complies with r 428
a proceeding in which the court has made an order under rule 14 ordering [4] UCPR r 212(2) Expert reports are not privileged from disclosure. addressed to the court and signed by the expert
the proceeding to continue as if started by claim [5] UCPR rr 547-552 statement of loss and damage and expert info in PI the expert's qualifications;
if the court directsa proceeding started by application. cases. all material facts, whether written or oral, on which the report is based;
Applies to all parties including a party who is a young person and a etc
litigation guardian of a young person. R209(2) B. PRIVILEGE AGAINST SELF-INCRIMINATION
A party need not produce for inspection documents, nor answer questions RECENT REFORMS RE EXPERTS
STEP [2]: DEFINITION under compulsion, where the contents would or might tend to expose the Measures to encourage:
R 210 states that disclosure means the delivery or production of documents in party to criminal liability or to exposure to penalties/forfeiture Joint appointment of expert, to be the only expert to give evidence on
accordance with this part. No protection for corporations: Environment Protection Authority v that issue (unless the court otherwise ordered). See r 429A
Caltex Refining Co P/L (1993) Costs sanctions may follow where multiple experts are needlessly
STEP [3]: IS THE DOCUMENT WHICH PRIMA FACIE MUST BE retained in relation to an issue (see r 429D ).
DISCLOSED? WITHOUT PREJUDICE Court may order experts confer and prepare document setting out
DUTY OF DISCLOSURE Courts should not know that they have tried to settle before areas of agreement and disagreement and reasons.
R 211(1) party to a proceedings has duty to disclose to other parties Communications for settlement not to be disclosed except on Q of
documents costs in litigation Field v Com for Railways for NSW STEP [5]: HAS THE SOLICITOR COMPLIED WITH HIS DUTY?
in possession or under control of first party and Marking communication without prejudice not necessary, nor sufficient. R 226(1) Solicitor must give court at trial signed certificate
directly relevant to allegation in issue (an allegation remains in issue Depends on whether the communication is part of settlement negotiation. a) stating duty of disclosure has been fully explained to client and
until it is admitted, withdrawn, struck out or otherwise disposed of). b) if party is corporation, identifying individual to whom duty explained
Duty continues until the proceeding is decided. CONCLUDE ON PRIV (2) certificate must be prepared and signed at or immediately before trial.
However, even if [priv claimant] claims privilege, [insert other partys name] may STEP [6]: IF DOCUMENTS MUST BE DISCLOSED HOW IS THIS DONE?
STEP [4]: DOES AN EXCEPTION TO DUTY TO DISCLOSE EXIST? challenge, and if they do so [insert party claiming priv], [privilege claimant] must R 214(1) disclosure is effected by
R 212 (1) The duty of disclosure does not apply to the following documents: within 7 days file and serve affidavit stating the claim: affidavit must be made by a) delivering a list of the documents to which the duty relates and also those for
(a) a document in relation to which there is a valid claim to privilege from individual who knows the facts giving rise to the claim. which privilege is claimed, and
disclosure; b) As requested, delivering copies of the documents listed (except privileged
(b) a document relevant only to credit; EXPERT REPORTS ones)
(c) an additional copy of a document already disclosed, if it is reasonable to Under the common law communications from an expert to a lawyer were R 215 party may require production of the originals for inspection.
suppose it contains no change/difference likely to affect the outcome of the generally privileged. However now r 212(2) abrogates that rule and says that If inconvenient:
proceeding. expert reports are not privileged. R 216 if inconvenient to deliver/produce (as required under r 214/215 ),
(2) expert reports NOT privileged However: Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) P/L (No 1) disclosure can be effected by producing for inspection and notifying in writing
[1999] 1 Qd R 141 all ancillary documents (communications) relating to convenient time and place for inspection
IS IT UNDER A PRIVILEGE? production of an expert report are still privileged. Procedure for producing them
Here these documents could be protected under the [insert privilege] R 217 , where documents are disclosed by producing them,
PI & fatal injury cases & Expert Reports documents must be contained together and arranged and identified -
A - LEGAL PROFESSIONAL PRIVILEGE In PI and fatal injury claims, all expert reports must be disclosed, accessible and convenient
This CL privilege protects communications between lawyers and clients made: even if you do not intend to reply on them at trial because producer must provide
1. for the dominant purpose of seeking or providing legal advice R 547 Plaintiff is required to serve a statement of loss and damage facilities for inspection and copying
2. communications made for the dominant purpose of use in, or in (must include names and addresses of all hospitals, doctors and
relation to, existing or reasonably anticipated legal proceedings. person to explain
experts who have examined the pl. or given reports).
Includes communications in documents and conversations and list of privileged documents
Def is under a similar obligation, to deliver a statement of expert and
written reports economic evidence, see R 550.
TIME TO DELIVER DOCS
Consequence: Lawyers are not required to, nor must they disclose information R 214(2)(e) within 28 days of close of pleadings
TRIAL WITH EXPERTS
that falls within these categories. [1] Rule 426 : expert has a duty to assist the court
DAMAGES
[2] Rule 427 : generally expert evidence in chief must be given by report unless
Exceptions to LPP: What priv does not cover Rule 221: A party may disclose to another party a document relating only to
(can be given orally)
damages only if the other party asks for its disclosure.
 be in approved form
STEP [7]: COURT INVOLVEMENT be served like claim, within 3 months of issue
RELIEF FROM DISCLOSURE the applicant may serve the respondent only after the applicant has
R 224 The court may order a party be relieved, or relieved to a specified extent, served all other persons who are required to be served under rule 244
of the duty of disclosure. (serve first the owner of document or person about whom info sought,
Court will take into account: unless they are likely to fabricate evidence or perpetrate a fraud).
(a) the likely time, cost and inconvenience involved in disclosing the
documents or classes of documents compared with the amount CONFIDENTIALITY
involved in the proceeding; Material obtained by compulsory disclosure process may only be used for the
(b) the relative importance of the question to which the documents or purpose of the litigation.
classes of documents relate; Distillers Company (Bio-chemicals) Ltd v Times Newspapers Ltd
(c) the probable effect on the outcome of the proceeding of disclosing [1974] 3 WLR 728 - discovered documents were made available to
or not disclosing the documents or classes of documents; newspaper. Court restrained publication - which was an abuse of the
(d) other relevant considerations. process of the court.
Home Office v Harman [1981] 2 WLR 310 solicitor held guilty of
ORDER TO DISCLOSE contempt of court for making available to journalist documents obtained
DISCLOSURE BY ORDER on discovery.
R 223 (1) court may order disclosure, effected by delivering copies or Central Qld Cement Pty Ltd v Hardy [1989] 2 Qd R 509 misuses
producing for inspection of information provided in supplementary witness statements given to
R 223 (2) court may order party to file and serve affidavit stating that press injunction granted.
document never existed, or does not exist and when it ceased to exist or
passed out of possession or control SETTING IT DOWN FOR TRIAL - FORMALITIES
R 223 (5) court may inspect document Rule 466 date for trial may be set at callover, by judge,by registrar at judges
direction.
CONSEQUENCE OF NON-DISCLOSURE Rule 467 A proceeding started by claim cannot be set down for trial unless all
R 225(1) party who does not disclose the parties sign a request for trial date in the approved form (form 48).
must not tender or adduce evidence as to contents w/o leave Rule 469 - a party (X) ready for trial may prepare and sign request for trial
is liable to contempt for non-disclosure must serve copies on each other party
may suffer costs penalties if ready they sign and return
(2) other party may apply for party X must file copy(s) signed by all parties
order staying/dismissing proceedings A party is ready for trial if
judgment or other order all necessary steps are complete
order for disclosure all witnesses will be available, and
as far as party is concerned, proceeding is in all respects ready for
STEP [8] GETTING THE DOC PRODUCED AT TRIAL trial
R 227 (1) Documents disclosed must be produced at the trial if: etc
notice to produce them has been given with reasonable particularity;
and Form 48, Request for trial date
(b) their production is asked for at the trial. Must indicate (by ticking), mode of trial eg:
Any party elected trial by jury
NON PARTY DISCLOSURE No party has elected/now requires trial by jury
R 242 party may require non-party to disclose documents directly relevant to There is no right to trial by jury.
allegation in issue, in possession or control, which non-party could be required to Must certify that:
produce at trial. 1. Disclosure has been provided as required by the rules and any order
by notice of the court.
requiring production w/in 14 days. 2. Any order requiring particulars to be given has been complied with.
Not permitted if there is another reasonably simple and inexpensive way of 3. Answers to any interrogatories have been delivered.
proving matter 4. All necessary steps in the proceeding are complete.
Formalities of Notice 5. All necessary witnesses will be available
R 243 notice must
be issued in the same way as a claim
state allegation in issue
include certificate by solicitor that there is no other reasonably simple
inexpensive way of proving matter
 12. PLEADINGS R 150 UCPR the following matters must be specifically pleaded Particulars should be provided in pleadings: rule 160(1) UCPR unless
Definition : Pleadings are documents exchanged by the parties to litigation in (a) breach of contract or trust; inconvenient (then in a separate document mentioned in, and filed and served
which they set out the material facts which they allege and intend to prove at the (b) every type of damage claimed go to r 155 & 158 UCPR with, the pleading)
hearing of the action. r 155 UCPR: if damages are pleaded R 157 UCPR Particulars in pleading
Objective : define the matters in issue & to inform the parties and the court of the - the pleading must state the nature and amount of the damages A party must include in a pleading particulars necessary to
matters in issue. claimed. (a) define the issues for, and prevent surprise at, the trial; and
OVERVIEW OF PLEADINGS - Must include the following particulars: the nature of the loss or (b) enable the opposite party to plead; and
[1] First pleading is the plaintiffs statement of claim which must disclose the damage suffered; the exact circumstances in which the loss or (c) support a matter specifically pleaded under rule 150 .
elements of the plaintiffs cause of action against the defendant. damage was suffered; the basis on which the amount claimed has
[2] The defendants answer to that claim is the defence. The defence might been worked out or estimated. WHAT TO DO IF YOU DO NOT HAVE SUFFICIENT PARTICULARS?
include a counterclaim or cross claim. - If practicable, the party must also plead each type of general
[3] The plaintiff must answer the defence with a reply and if the defence includes damages and state the nature of the damages claimed for each
a counterclaim, the plaintiff must answer a defence to that counterclaim. type
WHAT ARE THE FUNCTIONS OF PLEADINGS? - In addition, a party claiming damages must specifically plead any
- they enable the parties to define the essence of their dispute & so facilitate matter relating to the assessment of damages that, if not pleaded,
an orderly process, perhaps cumulating in a trial may take an opposing party by surprise.
- secondly, pleadings give each party notice of the relevant issues, therefore r 158 UCPR Particulars of damages
preventing surprise or ambush tactic & also satisfying in part the principle of - the pleading must contain particulars of the payment or liability.
due notice. - If a party claims exemplary or aggravated damages, the party's
- Thirdly, clear pleadings can prevent a party from inadvertently making a pleading must contain particulars of all matters relied on in support
false admission. of the claim.
- Pleadings set procedural parameters which enable other rules to be applied (c) defence under the Limitation of Actions Act 1974;
precisely; they offer guidance as to the scope of relevant material which (e) estoppel;
must be disclosed during the disclosure processpleading also determine (f) fraud;
the scope of any subsequent judgment; the doctrine of res judicata prevents (h) interest (including the rate of interest and method of calculation) claimed;
the matter being heard twice in two separate actions. (j) misrepresentation;
- Provide the court with vital information [as to allocating cases to case (l) negligence or contributory negligence;
management lists], or when determining any matters at an early stage of the (m) payment;
case management process (n) performance;
- Finally, pleadings enable the opposite party or the court acting on its own (t) want of capacity, including disorder or disability of mind;
initiative to declare the case bad in law or an abuse of process; there is no (x) anything else required by an approved form or practice direction to be
right to a day in court if the case is hopeless, improperly framed, otherwise specifically pleaded. [1] Ask the other side for further & better particulars
procedurally objectionable. R 160(2) UCPR More Particulars? Further particulars may be given by
RELEVANCE OF PLEADINGS AT TRIAL Debt or liquidated demand correspondence & r 160(3) A party giving further particulars must file a copy of
Binding at trial: The general rule is that relief is confined to that available on the the particulars.
pleadings as a basic requirement of procedural fairness. Banque Commerciale R 150 UCPR (3 ) If the plaintiff's claim is for a debt or liquidated demand only Keep file copies (will be used as exhibit to affidavit).
SA (with or without a claim for interest), the plaintiff must state the following details in [2] Apply to the Court for further & better particulars
- But Courts have tended to favour merits over procedure when considering the statement of claim
amendments - Queensland v JL Holdings P/L (1997 (a) particulars of the debt or liquidated demand; Getting better particulars
- But note Rigato Farms Pty Ltd v Ridolfi [2001] per de Jersey, CJ: Parties (b) if interest is claimedparticulars as required by rule 159; R 161 UCPR Application for order for particulars
do not have an inalienable right to a hearing of all issues on the merits. (c) the amount claimed for the costs of issuing the claim and attached (1) A party may apply to the court for an order for further and better particulars of
statement of claim; the opposite party's pleading.
CONTENT OF ALL PLEADINGS (d) a statement that the proceeding ends if the defendant pays the debt or (2) The court may, on an application under subrule (1), make the consequential
R 149 UCPR Each pleading must liquidated demand and interest and costs claimed before the time for filing orders and give the directions for the conduct of the proceeding the court
(a) be as brief as the nature of the case permits; and notice of intention to defend ends; considers appropriate.
(b) contain a statement of all the material facts on which the party relies but (e) a statement of the additional costs of obtaining judgment in default of
not the evidence by which the facts are to be proved; and notice of intention to defend. IF YOU HAVE SHITTY PARTICULARS?
The word material means necessary for the purpose of STRIKING OUT A PARTICULAR
formulating a complete cause of action. Pleading a conclusion of law (EG He was negligent) Apply r 162 UCPR Striking out particulars
Should not contain immaterial or unnecessary facts R 149 (2) UCPR in a pleading, a party may plead a conclusion of law or raise a if a particular
(c) state specifically any matter that if not stated specifically may take point of law if the party also pleads the material facts in support of the conclusion (a) has a tendency to prejudice or delay the fair trial of the proceeding; or
another party by surprise; and or point. (b) is unnecessary or scandalous; or
(d) state specifically any relief the party claims; and (c) is frivolous or vexatious; or
(e) if a claim or defence under an Act is relied onidentify the specific PARTICULARS (d) is otherwise an abuse of the process of the court.
provision under the Act.
 162(2) The court, at any stage of the proceeding, may strike out the particular [2] DEFENCE - SPECIFIC CONTENT [4] (set out as briefly as the nature of the case permits the material facts on
and order the costs of the application to be paid on the indemnity basis. (Def) must deal with every allegation made in (insert names) (insert which the defendant relies in accordance with the requirements of Chapter 6 of
document) the Uniform Civil Procedure Rules)
STRIKING OUT PLEADINGS
STRIKING OUT A PLEADING R 165 UCPR states (def) has 4 options: [3] REPLY
r 171 UCPR Court may strike out pleadings if: [1] Deny it (effect of a denial is to put the other party to proof of the allegations In Qld, if the plaintiff disputes allegations in the defence, the plaintiff must
Discloses no reasonable cause of action/defence denied). serve a reply, otherwise there is an implied non-admission of the defence
Tendency to prejudice/delay fair trial [2] Non-admit it (operates in the same way as a denial. Used where allegation allegations r 168 UCPR (Every allegation of fact made in the last
Unnecessary or scandalous being responded to is outside the knowledge of the defendant). pleading filed and served before the pleadings close is taken to be the
Frivolous or vexatious R 165 (2) UCPR A party who pleads a nonadmission may not give or call subject of a non-admission)
Abuse of court process evidence in relation to a fact not admitted, unless the evidence relates to another Then, the plaintiff cannot give or call evidence in relation to the allegations
part of the party's pleading. in the defence (r 165 ) (unless the evidence is relevant to another part of
FORM OF ALL PLEADINGS R 166(3) of UCPR party may plead a non-admission only if the party has made the plaintiffs pleadings).
R 146 UCPR Formal requirements inquiries to find out whether the allegation is true or untrue; and the inquiries are If the plaintiff needs to allege further facts to rebut a defence, this is where
(1) A pleading must reasonable having regard to the time limited for filing & serving the defence or it is done (not in the original statement of claim).
(b) state the description of the pleading; and other pleading in which the denial or non-admission is contained; and the party You can only use a reply to meet the defence; it cannot be used to raise a
(c) be filed and state the date on which it is filed; and remains uncertain to the truth or falsity of the allegation. new cause of action (r 154 ).
(d) be signed by the solicitor for the party filing it or, if the party [3] Admit The effect of an admission is that the plaintiff is not required to prove
appears or defends in person, the party; and the allegation. If an uncontroversial allegation is not admitted, the plaintiff will be Must also comply with r 150(4) UCPR.
(e) be consecutively numbered on each page; and required to prove it and the court may order that costs incurred in proving the In a defence or a pleading after a defence, a party must specifically plead a
(f) be divided into consecutively numbered paragraphs and, if allegation be borne by the defendant r 167 UCPR. matter that
necessary, subparagraphs, each containing, as far as practicable, a [4] Plead another matter (a) the party alleges makes a claim or defence of the opposite party not
separate allegation; and(g) if it is settled by counselstate the Raise a point of law; maintainable; or
counsel's name. Make an inconsistent alternative plea eg deny the making of a contract (b) shows a transaction is void or voidable; or
(2) In addition, a pleading (other than a reply) must have on it a notice to the party alleged by the pl, and also allege that if there is a contract it is (c) if not specifically pleaded might take the opposite parties by surprise; or
on whom the pleading is served under rule 164 informing the party about the time unenforceable because of the absence of writing (sale of land), or (d) raises a question of fact not arising out of a previous pleading.
for serving pleadings in response under rule 164. Proceed to counterclaim eg for breach of contract.
[5] Ignore it
DRAFTING QUESTION (APPLY RULES ABOVE) An allegation of fact made by a party in a pleading is taken to be admitted by an [4] COUNTERCLAIM
[1] STATEMENT OF CLAIM opposite party required to plead to the pleading unless Rule 166 UCPR [1] R 179 : A counterclaim must be in the approved form and must be included in
-Identify the parties to the proposed action and how they are involved. UNLESS there is an implied non-admission under r 168 UCPR Every allegation the same document and served within the same time as the defence.
-Statement of claim must set out the material facts (but not evidence) relied on to of fact made in the last pleading filed and served before the pleadings close is [2] Defendant generally follows the same pleading requirements as for a
support the claim made must disclose a cause of action. taken to be the subject of a non-admission statement of claim must reveal a cause of action by pleading necessary
-Give particulars (no surprises for other party): material facts LOOK ABOVE!
1. particulars of claim (allege material facts sufficient to establish each Must also comply with r 150(4) UCPR [3] Except: no need for repetition: And by way of counterclaim the defendant
element of the cause of action). In a defence or a pleading after a defence, a party must specifically plead a says as follows: 1) The defendant repeats and relies on the matters set out in
Eg negligence: material facts sufficient to establish a duty of care matter that paragraphs 1, 2, 3 and 6 of his defence. Then allege additional facts relied on.
owed by defendant, breach of that duty, causation, consequential (a) the party alleges makes a claim or defence of the opposite party not
damage. maintainable; or
Include times, dates, place. (b) shows a transaction is void or voidable; or
Include anything which must be specifically pleaded (r 150 (1)) (c) if not specifically pleaded might take the opposite parties by surprise; or
2. particulars of negligence (must be specifically pleaded) (d) raises a question of fact not arising out of a previous pleading.
3. particulars of damage + interest (must be specifically pleaded).
-Provided the necessary elements of the cause of action are pleaded, the plaintiff FORM OF DEFENCE
should not try to anticipate the defendants defence. The [first] defendant relies on the following facts in defence of the claim:
-Comply with procedural requirements (titles, forms etc) and jurisdictional [1] [The defendant admits the allegations in paragraphs ...................... of the
requirements (make sure you start in the right court). statement of claim.]
[2] [The [first] defendant does not admit the allegation in paragraph ... of the
statement of claim. The [first] defendant has made reasonable inquiries and
Economic Loss from when suffered/when loss occurred remains uncertain of the truth or otherwise of the allegation and is unable to admit
it because ........ (give explanation). [The [first] defendant believes the allegation
cannot be admitted because (give explanation).]
[3] [The [first] defendant denies the allegation in paragraph ... of the statement of
claim because ... (give explanation).]
 APPENDIX PROBABLY WONT BE ON EXAM BUT JUST IN CASE Cant whitewash or sterilise material just by raising it at mediation. o Also used to penalize parties who fail to accept reasonable settlement
Duty to advise / consider ADR PROBLEM Q EXCEPTIONS s54(2) CPA: disclosure is justified (reasonable excuse) when: offers
Professional codes of conduct and rules of court impose an obligation on practitioners to Is made with the parties agreement Maitland Hospital v Fisher (example of offer to settle)
inform clients about alternatives to litigation. For an inquiry or proceeding relating to an offence occurring in the ADR Plaintiff was awarded costs on a full indemnity basis because she recovered $206, 090
Rules of court impose an obligation on court officials to consider appropriateness of process (plus costs) by judgment, having earlier offered to compromise for $200,000 (plus costs).
matters for ADR. For a proceeding based on a fraud alleged to relate to or have occurred in the The purpose of the rule [re offers of compromise] is to put a premium on realistic
Costs orders against practitioners (CL) PROBLEM Q: BAD LAWYER ADR process, or assessment of casesIt has added a new duty to the functions of legal practitioners
Courts have inherent jurisdiction to award costs against legal practitioners But now there To fulfil a statutory requirement. advising litigants.
are more sources the Courts can rely on (eg SECT 5 UPCR (3)) What to say if someone over inflates their damages / or admits 703 Indemnity basis of assessment
SECT 5 UPCR (3) In a proceeding in a court, a party impliedly undertakes to the court something (1) The court may order costs to be assessed on the indemnity basis.
and to the other parties to proceed in an expeditious way. Justice Young in the NSW case of Lukies v Ripley had to decide this exact issue. Justice NoteCosts on the indemnity basis were previously solicitor and client costssee rule
Should only be invoked where there has been a serious dereliction of the practitioners Young had to determine whether or not evidence which demonstrated that in mediation, 743S (Old basis for taxing costs equates to new basis for assessing costs).
duty to the Court. A serious dereliction means Where practitioner unreasonably initiates the plaintiff, asked for far too much in damages, and therefore, the defendant argued, (2) Without limiting subrule (1), the court may order that costs be assessed on the
or continues those proceedings. This will occur where: prevented him from settling and so forcing the whole litigation to Court. Justice Young indemnity basis if the court orders the payment of costs
1. Hopeless case? Pursuit of a hopeless case or a case where a client has no or decided not to admit such evidence on public policy grounds, stating If parties have (a) out of a fund; or
substantially no prospect of success is NOT necessarily a breach of duty Lewick attempted to settle the whole or part of litigation and if they have agreed between (b) to a party who sues or is sued as a trustee; or
Balancing of competing principles themselves expressly or impliedly that they will not give in evidence any communication (c) of an application in a proceeding brought for noncompliance with an order of the court.
a party is entitled to have a practitioner act for him or her even in an unmeritorious made during those discussions, then public policy makes those discussions privileged (3) When assessing costs on the indemnity basis, a costs assessor must allow all costs
case as public ought to be able to access system when they have genuine from disclosure in a court of law or equity. reasonably incurred and of a reasonable amount, having regard to
complaint Not at meditation/ADR (a) the scale of fees prescribed for the court; and
BUT lawyers must not commence a proceeding without any, or any proper, IF OFFER MADE BY PLAINTIFF: (b) any costs agreement between the party to whom the costs are payable and the party's
consideration of the question whether the proceeding has any prospect of success - Here an offer to settle was made by the plaintiff [insert name] to defendant [insert solicitor; and
at all Lewick name], which was refused, which after the judgment has seen to be a (un)reasonable (c) charges ordinarily payable by a client to a solicitor for the work.
2. Ulterior purpose: Will be unreasonable where s/he has an ulterior purpose in one.
instituting the proceeding - Rule 360 says that as the plaintiff has made an offer that is not accepted by the Alternative Dispute Resolution THEORY / PROBLEM
Buy time for a client who is about to become bankrupt defendant and the plaintiff obtains an order no less favourable than the offer & court To save the Courts time, there is a clear judicial reference in favour of not generally letting
Practitioners actions amounts to an abuse of process Lewick is satisfied plaintiff was at all material times willing and able to carry out what was a matter go to trial unless parties have tried alternative dispute resolution and such attitude
White Industries v Flower & Hart (proceedings had been instituted to delay an proposed in the offer, the court must order the defendant to pay the plaintiff's costs is reflected in Practice Directions, CPA s 37 & case law (eg ACCC v Cadbury
inevitable outcome (namely bankruptcy) & to achieve a breathing space. Plaintiffs calculated on the indemnity basis unless the defendant shows another order for costs Schweppes : trial judge ordered the parties to attend mediation before the defence had
solicitors were ordered to pay the defendants costs on an indemnity basis) to pay the is appropriate in the circumstances. GO TO COSTS ABOVE been filed, despite the parties desire to wait). ADR
defendants costs on an indemnity basis). IF OFFER MADE BY DEFENDANT: As part of the reforms re case management, QLD has two ADR options: mediation or case
Considerations in determining unreasonably - Here an offer to settle was made by the defendant [insert name] to plaintiff [insert appraisal s39 CPA.
Courts will consider whether the lawyer name], which was refused, which after the judgment has seen to be a (un)reasonable Note: trial dates may not set until ADR process followed.
Had sufficient knowledge of the case to justify pursuing it one. Legislative objectives for ADR
Caused a letter before action to be written - R 361 says that if a defendant makes an offer that is not accepted by the plaintiff and 37 Objects of pt 6 UCPR
Considered settlement the plaintiff does not obtain an order that is more favourable to the plaintiff than the (a) to provide an opportunity for litigants to participate in ADR processes in order to
offer; and the court is satisfied that the defendant was at all material times willing and achieve negotiated settlements and satisfactory resolution of disputes; &
Had a proper grasp of the issues
able to carry out what was proposed in the offer. Unless a party shows another order (b) to improve access to justice for litigants and to reduce cost and delay; and
Had turned his or her mind to the relevant law and facts
for costs is appropriate in the circumstances, the court must (c) ADR processes to be conducted as quickly, and with as little formality and
Had read the relevant authorities technicality, as possible; and
(a) order the defendant to pay the plaintiff's costs, calculated on the standard basis,
Had advised the client that his or her success was very poor (d) to safeguard ADR processes- by extending the same protection as a court; and by
up to and including the day of service of the offer; and
(b) order the plaintiff to pay the defendant's costs, calculated on the standard basis, ensuring they remain confidential.
Failure to accept a reasonable offer PRACTICALLY though: to save the Courts time
after the day of service of the offer. GO TO COSTS ABOVE
At meditation/ADR ADR & the judicial role
COSTS (Always ask at end) STATE AT END OF QUESTION / CONCLUDE
- Here [insert name] has made an offer (arguably a reasonable one), which [insert The growth of ADR in Australia is intertwined with the advent of case management. Within
Definition: refers to the sums of money which a party may recover at the end of litigation
name] has not accepted. the panoply of case management powers is the power to refer proceedings to ADR. Parties
from the other side for reimbursement of expenses incurred in litigation.
- The question is are there any consequences of [insert name] not accepting the offer. are increasingly expected to attempt to resolve disputes prior to resorting to litigation and
Step 1: General Rule While costs are at the discretion of the court, if a case goes to
- S 37(d)(ii) CPA states it is an object of ADR processes to safeguard the ADR managerial judges are engaged in encouraging parties to resolves disputes. Case
trial, the loser usually pays the costs of the winner UCPR r 681
processes by ensuring they remain confidential and s 54(1) of CPA mirrors this management is becoming imbued in the processes of ADR & shares a common aim of
Step 2: Which rate is applicable?
objective by stating that an ADR convenor must not without reasonable excuse, promoting the efficient & cost-effective resolution of disputes.
[1] Standard basis (usual approach)
disclose information coming to the ADR convenors knowledge during an ADR How can Parties be referred to Mediation or Case Appraisal? Getting to ADR
Party & Party basis
process. THEORY QUESTION
702 Standard basis of assessment
- Therefore there is no obligation on [insert name] to of accepted the offer of [insert [1] Parties can decide they want to go to ADR & can refer their dispute to an ADR process,
(1) Unless these rules or an order of the court provides otherwise, a costs assessor must
name] and there are no negative consequences of him no doing so. filing a consent order. Court then makes a referral order CPA s 42
assess costs on the standard basis.
- However if the offer had been after mediation and it was held to be a reasonable [2] Of its own initiative, the Court may order parties to go to mediation/CA CPA s43 / UCPR
(2) When assessing costs on the standard basis, a costs assessor must allow all costs
offer, despite the fact that under r 681 the general rule is that winner gets costs, costs r 319
necessary or proper for the attainment of justice or for enforcing or defending the rights of
will be awarded on an indemnity bases (r703) to the party who made the reasonable Considerations: without limiting the Courts discretion, CPA s43(4), says the Court can
the party whose costs are being assessed.
offer. take the following matters into account: whether the costs of litigating the dispute to the end
[2] Indemnity basis (more generous scale)
LIMITS: Willamson v Scmidt are likely to be disproportionate to the benefit gained AND the likelihood of an appraisal
Applicable where
While a participant cannot lead evidence of anything said or done at mediation in later producing a compromise or an abandonment of a claim or defence.
o Misconduct, obstruction, delay or abuse of process
proceedings, a participant is entitled to prove by admissible evidence pf any factor or matter Objection? (Eg: already been to mediation a few times)
disclosed at mediation.
A party may object to the reference, within 7 days of receiving the notice, by filing an 4. Rule 330 UCPR provides that the mediator may abandon the mediation if the - Mediation does not guarantee an outcome (as third party has no decision making
objection notice (stating the reasons for the objection). If objection, the court may require mediator considers further efforts at mediation will not lead to the resolution of the power & Parties may not agree)
the parties to attend a hearing, at the conclusion of which, the court may make an order it dispute or an issue in the dispute. - Case Appraisal will provide an outcome, although it can be objected
considers appropriate. UCPR r 319 Before abandoning the mediation, the mediator must(a) inform the parties of the
[3] The court may order a dispute to mediation or case appraisal on the application of a mediator's intention; and (b) give them an opportunity to reconsider their positions
party or if the proceedings is otherwise before the court (eg where the case has already
been set down for hearing or part-heard) UCPR r 320 Immunity of Mediator Process:
CPA 52 (1) In performing the functions of an ADR convenor under a referring order, the - Mediation allows the parties to revise and adjust the scope of their conflict and
Theory behind a Court being able to order ADR ADR convenor has the same protection and immunity as a Supreme Court judge created more flexible solutions
It is a striking development in ADR in Australia that legislation has now given Courts the performing a judicial function. - Where as Case Appraisal provides a decision that a Court could give
power to order parties to attend ADR even if one or more of the parties opposes such an Replacement of Mediator Legal Representation:
order. An examination of the legislative debates preceding the enactment of such legislation 333 Replacement of mediator - Mediation does not guarantee legal representation r 326 UCPR
reveals that the justifications were almost entirely about the perceived capacity of ADR to (1) The court may, by further order, revoke the appointment of a mediator and appoint - Case Appraisal says you have a right to legal representation r 336 UCPR
save time & costs & to take pressure off crowded Court dockets than they were about the someone else as mediator if the court is satisfied it is desirable to do so. Benefits of mediation
intrinsic qualities of ADR which make it preferable to litigation. (2) When appointing a substitute mediator, the court may decide the amount (if any) to be - Mediation is relatively simple . There are no complex procedural or evidentiary
Consequences of Referral to ADR paid to the retiring mediator for work done. rules which must be followed
1. Proceedings are stayed (until report from ADR convenor is received by Court) AFTER mediation - Mediation allows the parties to revise and adjust the scope of their conflict .
UCPR r 321 1. Mediator must file a certificate about the mediation CPA s49 (1) In a trial, initial pleadings and rules of procedure limit the issues which a party can
2. Parties must attend ADR and must not impede ADR convenor. CPA s 44 CIVIL PROCEEDINGS ACT 2011 - SECT 49 raise. In mediation, as circumstances change so can the topics up for discussion.
o If Mediation: Parties must act reasonably & genuinely to assist the mediator r As soon as practicable after a mediation has finished, the mediator must file a certificate This increased flexibility makes it easier for negotiators to act as problem-solvers
325 about the mediation in the approved form. instead of adversaries.
Impede: A party will impede an ADR process where the party fails to attend an ADR 2. Form of Certificate UCPR r 331 - Mediation allows for flexible solutions and settlements . The relief available in
process, to participate in the process or pay an amount the party is required to pay under a must not contain comment about the extent to which a party participated or court is usually based on pecuniary damages, and equitable relief is hard to come by.
referring order within the time stated in the order. . refused to participate in mediation In mediation, however, the parties can agree to a settlement requiring, or restraining,
Consequences of impeding: If a party impedes the ADR process, the court may impose but may state that a party did not attend the mediation action by one party which was not originally envisioned as something beneficial to the
sanctions against the party, including an order that any claim for relief by the defaulting 3. If mediation is unsuccessful UCPR r 332 other party.
party is stayed until further order and by taking the partys action into account when the dispute may go to trial or be heard in the ordinary way without an - Settlements reached in mediation are more agreeable to both parties than court
awarding costs CPA s 44(2) inference being drawn against any party of the failure to settle at the judgments. Because any settlement arrived at through negotiation is necessarily
Costs of failed ADR are costs in the dispute mediation. agreed to voluntarily by both parties, obligations under the agreement are more likely
Unless otherwise ordered by the Court, each partys costs of & incidental to an ADR 4. If mediation successful CPA s 48; UCPR r 329 to be fulfilled than obligations imposed by a court.
process not resulting in the full settlement of the dispute between the parties are the partys If agreement reached (whole or part), the agreement must be written down Disadvantages of mediation
costs in dispute UCPR 351 - Mediation does not always result in a settlement agreement. Parties might spend
and signed by or for each party and by the mediator.
MEDIATION their time and money in mediation only to find that they must have their case settled for
The agreement has effect as a compromise.
LEGISLATION Civil Proceedings Act 2011 & UCPR them by a court. Opting for mediation, therefore, presents something of a risk. Further, if
5. Apply to Supreme Court
DEFINTIONS Assisted negotiation (parties get to fashion their own agreements) mediation fails, much of a partys ammunition might have already been exposed to the
After mediator has filed certificate, any party may apply to the court for an opposing party, thereby becoming far less useful in the ensuing trial.
Assisted: an independent third party assists the parties to negotiate a resolution
order giving effect to the agreement & the court may make any order it Will not be suitable where
Negotiation: a process whereby the parties confer with each other for the purpose of
considers appropriate in the circumstances: CPA, s 50.
reaching an agreement that satisfies their respective interests. Mediation will not be suitable where the parties to the dispute require a court
CPA definition s40 (note: intentionally broad) Rationale: if they do not perform obligations from mediation, it is contempt
of Court as opposed to a simple breach of contract. judgment (for example where provisions in standard terms and conditions require
Mediation is a process under the rules in which the parties use a mediator to help them
resolve their dispute by negotiated agreement without adjudication. obligations from mediation, it is contempt of Court as opposed to a simple determination in light of an ongoing trading relationship) or a remedy that a
BASICS Can be started before or after proceedings breach of contract. mediation process cannot provide, such as injunction.
Role of Mediator MEDIATION OR CASE APPRAISAL OR COURT? THEORY QUESTION
ADR v COURT It has been suggested that fraud cases may be less suitable for mediation but
Broadly: to facilitate negotiation.
- ADR is speedier and less costly than litigation this is probably only the case where there has been the most serious breakdown
1. Rule 326 UCPR provides that the mediator may:
gather information about the nature and facts of the dispute in any way the mediator - Sometimes judges do not have expertise in a matter, when mediators do in trust between the parties.
decides. - in commercial & on going relationship matters parties may come to a more amicable
agreement in ADR as opposed to Court
decide whether a party may be represented at the mediation and, if so, by whom.
- When parties hate each other, ADR probably pointless
see the parties, with or without their representatives, together or separately.
o Refusal by Mason P to order ADR in Harrison and Schipp as parties the end
2. Rule 327 UCPR gives mediator or party liberty to apply to Court
game where the parties are staring each other down like 19th century Western
The mediator or a party may apply to the court at any time for directions on any
gun fighters.
issue about the mediation.
convinced mediation would be more costly for the parties, would distract
3. Rule 328 UCPR provides that the mediator may:
them from preparing for trial and might even cause the hearing date to be
Seek legal or other advice about the dispute from independent third parties. displaced
If extra costs are involved for this, the mediator must has the leave of the court or the parties were represented by lawyers & if they were going to settle at this
parties agreement to pay extra costs. late date, they could do so
If the court gives leave, the court must also order the parties to pay the extra cost; - Mediation/CA is CONFIDENTIAL (court is 99% not confidential)
and state to whom and by when the payment must be made. MEDIATION v CASE APPRAISAL
The mediator must disclose the substance of the advice to the parties. RISK of compulsory mediation / Case appraisal is that it will be sought by a partyfor an
ulterior purpose, eg to cause delay
Outcomes: