DIPLOMA IN LAW
LEGAL PROFESSION
ADMISSION BOARD
LAW EXTENSION COMMITTEE
LAW EXTENSION COMMITTEE SUBJECT GUIDE
15 PRACTICE AND PROCEDURE
SUMMER SESSION 2015-16
This Guide includes the Law Extension Committee’s course information and teaching program and the
Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading
“Prescribed Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the
NSW Admission Board Rules 2015.
Explanatory Note
Course Description and Objectives
Lecturers
Assessment
March 2016 Examination
Lectures
Weekend Schools 1 and 2
Texts and Materials
Compulsory Assignment
Assignment Questions
Prescribed Topics and Course Outline
Lecture Outlines
1
1-2
2
2-3
3
3
3-4
4
5
5
6-10
11-30
1
LAW EXTENSION COMMITTEE
SUMMER 2015-16
15 PRACTICE AND PROCEDURE
EXPLANATORY NOTE
Up to and including the Summer Semester 2004-05 the subject of Practice and Procedure involved an
examination of the Supreme Court Act 1970 (NSW) and the Supreme Court Rules (NSW).
This gave a basis for understanding civil litigation in the Supreme Court of NSW, and also an essential
understanding to the conduct of civil litigation in the District Court of NSW and in the Local Court in
NSW. However, in relation to practice as a legal practitioner, if a matter was to be conducted in, say,
the District Court, the practitioner would have needed to know the provisions of the District Court Act
1973 (NSW) and the District Court Rules. Similarly, a matter in the Local Court would have required
the application of the Local Court (Civil Claims) Act 1970 (NSW) and the Local Court Rules.
As a consequence of the introduction in 2005 of the Civil Procedure Act and Uniform Civil Procedure
Rules, there is much greater uniformity in procedures applicable to these various levels of courts in
their civil jurisdiction. However, some provisions of the previous Acts remain in force and of
importance and some rules also continue.
It is essential, generally, for all students to regularly access the LEC Webcampus to ascertain any
additional material as and when it becomes available, especially references to relevant Practice
Notes.
COURSE DESCRIPTION AND OBJECTIVES
The subject of Practice and Procedure deals with the day-to-day practicalities of civil litigation in New
South Wales.
SPECIAL NOTE:
In contrast to previous seminars, there will be greater emphasis on the more significant Practice Notes
when looking at the step by step procedure.
The emphasis throughout the course is on conducting matters through the Supreme Court of New
South Wales. However, with the changes introduced by the Civil Procedure Act of 2005 and the
Uniform Civil Procedure Rules 2005, the procedure, with some exceptions, will be uniform throughout
the Supreme Court, District and Local Courts of New South Wales.
The topics covered in the course are set out in the syllabus. In general terms the course deals with:
(a)
the logistics of commencing an action in the Supreme Court; the various interlocutory steps
between the commencement of an action and the hearing stage, including discovery and
inspection and the issuing of subpoenas;
(b)
evidence in relation to procedural matters;
(c)
the logistics of “running” a matter, including enforcement of judgment;
(d)
elementary drafting principles, including practical drafting of documents;
(e)
mediation and alternative dispute resolution.
Special Note:
(f)
The NSW Parliament has introduced, as at March 2011, an amendment to the NSW Civil
Procedure Act 2005 by way of incorporating Part 2A – steps to be taken before the
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commencement of proceedings. This, presently, is in abeyance. Details will be advised in
lectures.
LECTURERS
Mr Robert Gowenlock, LLB (Syd)
Robert Gowenlock is a barrister practising in Sydney since 1973, and a former part-time lecturer in
Practice and Procedure at the University of Technology, Sydney. He has a wide area of practice,
including property, trusts, wills and estates, negligence, insurance and personal injury, bankruptcy and
equity and conducted seminars in debt recovery for Dun & Bradstreet from 1980 to 2003.
Ms Andrea Cotter-Moroz, LLB (Hons) (UTS), Grad Dip (Leg Prac) (UTS), M.Ed (Adult) (UTS)
Andrea Cotter-Moroz is a practising barrister at the NSW Bar. She has a broad range of experience,
appearing in all civil courts, within both the state and federal court systems. Her main areas of
practice are family law and equity. Andrea has a special interest in alternative dispute resolution. She
is also on the panel of Mediators for the referral of Supreme Court matters and is a Local Court
Arbitrator. Andrea also teaches Family Law for the Law Extension Committee.
ASSESSMENT
To be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and
learning program, the first step of which is to ensure that you have registered online with the LEC in
each subject for which you have enrolled with the Board. This gives you access to the full range of
learning resources offered by the LEC.
To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow
the instructions. Detailed guides to the Webcampus are contained in the material distributed by the
LEC, in the Course Information Handbook, and on the Webcampus.
Eligibility to Sit for Examinations
In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a student’s
performance in a subject in order for the student to be eligible to sit for the examination, conducted by
the Legal Profession Admission Board (LPAB). Assignments are used to assess eligibility.
Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for
examinations. However, a category of “deemed eligible” has been introduced to offer students whose
assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances
students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the
examination.
Assignments as part of the Board’s Examinations
Assignment results contribute 20% to the final mark in each subject.
The Law Extension Committee (LEC) administers the setting and marking of assignments. The LEC
engages the LPAB’s examiners to assess or supervise the assessment of assignments.
Submission
Assignments must be received by 11:59pm on the due date unless an extension has been granted.
Extensions must be requested by email prior to the due date. Specific supporting evidence must be
provided. Assignments that are more than ten days late will not be accepted. Late assignments attract
a penalty of one mark out of 20, or 5% of the total marks available, per day.
3
Assessment
Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined
in the Guide to the Presentation and Submission of Assignments. Prior to the examination,
assignments will be returned to students and results posted on students’ individual results pages of
the LEC Webcampus. Students are responsible for checking their results screen and ascertaining their
eligibility to sit for the examination.
Review
Where a student’s overall mark after the examination is between 40-49%, the student’s assignment in
that subject will be included in the Revising Examiner’s review. The final examination mark is
determined in accordance with this review. Assignment marks will not otherwise be reviewed.
MARCH 2016 EXAMINATION
Candidates will be expected to have a detailed knowledge of the prescribed topics:

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
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




General issues;
Jurisdictional issues;
Initiating civil actions I;
Initiating civil actions II;
Interlocutory procedures I;
Interlocutory procedures II;
Hearings and judgments and enforcement;
Alternative dispute resolution;
Case management, including Practice Notes.
Candidates will be expected to have made a study of the prescribed materials in relation to those
topics, and to have analysed the cases and statutory provisions referred to in the Law Extension
Committee’s course and lecture outlines.
All enquiries in relation to examinations should be directed to the Legal Profession Admission Board.
LECTURES
Lectures will be held on Fridays commencing at 6.00pm. In the first half of the semester, they will be
held in Architecture Lecture Theatre 2, Faculty of Architecture, Design and Planning, in the Wilkinson
Building, which is across City Road on the Darlington Campus. Please refer to the map at
https://sydney.edu.au/maps/embed/?building=G04. Lectures after the study break will be held in New
Law School Lecture Theatre 104 (New LSLT 104).
The study break is from Friday 18 December 2015 – Sunday 10 January 2016
WEEKEND SCHOOLS 1 AND 2
There are two weekend schools principally for external students. Lecture students may attend but
should be aware that weekend school classes aim to cover the same material provided in weekly
lectures and are primarily for the assistance of external students.
Please note that it may not be possible to cover the entire course during the weekend schools.
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Weekend School 1
Saturday 28 November 2015:
4pm - 8pm
Sunday 29 November 2015:
8am - noon
New Law School
Lecture Theatre
106
New LSLT 106
New LSLT 106
Weekend School 2
Saturday 30 January 2016:
4pm - 8pm
Sunday 31 January 2016:
8am - noon
New Law School
Lecture Theatre
106
New LSLT 106
New LSLT 106
TEXTS AND MATERIALS
Course Materials




Practice and Procedure Course Materials (available via the link to the Law Library in the Course
Materials section of the LEC Webcampus)
Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)
Practice Notes, as discussed in lectures
Case List – A case list will be made available once lectures commence
Prescribed Materials
 Civil Procedure Act 2005
 Uniform Civil Procedure Rules 2005, including Practice Notes
 An alternative to the CPA & UCPR is New South Wales Civil Procedure Handbook 2015 Hamilton,
Lindsay, Morahan & Webster, Thompson Reuters
 Evidence Act 1995 (NSW) or (Cth)
Reference Materials
 Ritchie, Uniform Civil Procedure NSW, LexisNexis Butterworths (loose leaf service). Alternatively,
Thomsons, New South Wales Civil Practice and Procedure
 Cairns B.C., Australian Civil Procedure, 10th ed. Thomson Reuters, 2014
 Colbran et al, Civil Procedure: Commentary & Materials, 4th ed. LexisNexis, 2009
 Azize, El Khouri and Finnane, Pleading Precedents, Thomson Reuters, 2009
 Villa, Dominic, Annotated Civil Liability Act 2002 (NSW) 2nd ed. Thomson Reuters, 2013
 Odgers S., Uniform Evidence Law, 11th ed. Thomson Reuters, 2014
 Jones D., Commercial Arbitration in Australia, 2nd ed, Thomson Reuters 2013
 Boniface, Kumar & Legg, Principles of Civil Procedure in New South Wales, 2nd ed. Thomson
Reuters, 2012
Important Notice
The Civil Procedure Act, less so, and the Uniform Civil Procedure Rules, more often, undergo
continuing change. This also applies to Practice Notes.
Any examination will be set on the basis of the relevant procedure provisions in force as at the time
the second weekend school is conducted. Students must be aware of the need to ascertain any
changes to the course materials by checking the LEC site.
LEC Webcampus
Once you have registered online with the LEC, you will have full access to the facilities on the LEC
Webcampus including links to relevant cases and legislation in the Course Materials section.
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COMPULSORY ASSIGNMENT
In Practice and Procedure, there is only ONE ASSIGNMENT. This assignment is compulsory
and must be submitted by all students. Students must submit the assignment by the due date.
A pass mark is 50%. Refer to the Guide to the Presentation and Submission of Assignments for
the assignment grading and assessment criteria. Students who fail to satisfy the compulsory
requirements will be notified through the Results screen on the Webcampus before the
examination period of their ineligibility to sit the examination in this subject. The maximum
word limit for the assignment is 2000 words (inclusive of all footnotes but not bibliography).
The rules regarding the presentation of assignments and instructions on how to submit an assignment
are set out in the LEC Guide to the Presentation and Submission of Assignments which can be
accessed on the LEC Webcampus. Please read this guide carefully before completing and submitting
an assignment.
The completed assignment should be lodged through the LEC Webcampus, arriving by 11:59pm on
the following date:
Compulsory Assignment
Monday 25 January 2016
(Week 9)
ASSIGNMENT QUESTIONS
To obtain the Practice and Procedure assignment questions for the Summer Session 2015-16,
please follow the instructions below:
1.
Register online with the LEC (see page 27 of the Course Information Handbook for detailed
instructions). Once you have registered, you will have full access to all the facilities on the
LEC Webcampus.
2.
Then go into the Webcampus, select the Course Materials section and click on the link to
the assignment questions for this subject.
6
PRESCRIBED TOPICS AND COURSE OUTLINE
NOTE: The references to specific rules and sections of statutes are made as a general
guideline only. Students should be aware that other provisions, practice notes and decisions
also need to be considered in relation to each topic outlined below.
1. GENERAL ISSUES
1.
Jurisdiction
(a)
Original jurisdiction: civil
(i)
Civil Procedure Act 2005 (NSW), s.5
Service and Execution of Process Act 1992 (Cth)
Foreign Judgments Act 1991 (Cth)
Jurisdiction of Courts (Foreign Land) Act 1989 (NSW)
Family Law Act 1975 (Cth), s.40
Land and Environment Court Act 1979 (NSW)
Consumer Trading and Tenancy Tribunal Act (NSW)
(ii)
(iii)
Limitations imposed by costs rules
Inherent jurisdiction/incidental powers
(b) Appellate jurisdiction: civil
Civil Procedure Act 2005 (NSW)
2.
CROSS-VESTING LEGISLATION
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)
Re Wakim; Ex parte McNally (1999) 73 ALJR 839
Judiciary Act 1903 (Cth)
Accrued Jurisdiction Federal Courts
3.
OVERVIEW OF CIVIL PROCEDURE ACT 2005
4.
JURISDICTIONAL LIMITS OF THE DISTRICT COURT AND LOCAL COURT
5.
TRANSFER OF MATTERS BETWEEN THE SUPREME, DISTRICT AND LOCAL COURTS
Note: All references to the Act or Rules refer to the Civil Procedure Act 2005 (NSW) and the
Uniform Civil Procedure Rules 2005 except where otherwise specified.
6A. INITIATING CIVIL ACTIONS I – consider in context of relevant Practice Notes
1.
Time
Part 1
Division 2
Rules
2.
Preparation and Filing of Documents
Part 4 Rules
3.
Preliminary Discovery
Part 5 Rules
1.11 to 1.13
7
4.
Parties to Proceedings and Representation
Part 7 Rules
5.
Joinder of Causes of Action and Parties
Part 6 Division 5
Rules
Part 6 Division 6
Rules
Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589
6.
7.
Originating Process
Part 6 Division 1
Part 6 Division 2
Part 6 Division 4
Section 100 Interest
Rules
Rules
Rules
Pleading Principles
Part 6 Division 4
Part 14 Rules
Rules
8.
Requirements on Clients/Legal Practitioners in Commencement/Conduct of Proceedings
Part 14 Division 4
Rules
Other rules and statutes
9.
Particulars
Part 15 Division 1
Part 15 Division 2
Rules Generally
Rules Personal injury cases
6B. INITIATING CIVIL ACTIONS II
1.
Preliminary Consideration of Costs
Part 42 Rules
2.
Commencement of Proceedings
Part 6 Division 1
Rules
Part 4 Division 2
Rules
3.
Service
Part 10 Rules
Part 11 Rules
Schedule 6 (Rule 11.2)
(Commonwealth) Service & Execution of Process Act 1992
Corporations Law – Service Provisions, s.109X, s.601CX
4.
Appearance
Part 6 Rule 1
Part 6 Division 3
Part 12 Rule 11
Rules
Rules
5.
Defences & Further Pleadings
Part 14 Division 1
Rules
Part 14 Division 2
Rules
Part 14 Division 4
6.
Cross Claims
Section 22
Act Cross Claim
Section 21
Act Set off
Part 9 Rules
8
7.
Interpleader
Part 43 Rules
8.
Amendment
Part 19 Rules
Sections 64, 65, 58(1)(2), 56 and 57
7A. INTERLOCUTORY PROCEDURES I
1.
Notice of Motion
Part 18 Rules
Motion
Part 35 Rules
Affidavits
Part 31 Rules
Evidence
Section 75 Evidence Act 1995 (NSW)
2.
Default Judgment
Part 16 Rules
3.
Summary Disposal
Part 13 Rules
Part 14 Rule 28
Rules
Part 17 Rule 7
Rules
Part 20 Rule 33 & 34 Rules
4.
Other Forms of Disposal
Part 12 Division I
Rules
Part 42 Rule 19
Rules
Part 12 Division 2
Rules
Part 12 Division 3
Rules
Section 61 Act
5.
Discontinuance
Costs
Withdrawal
Dismissal
Security for Costs
Part 42 Division 6 Section 1335 Corporations Law
Inherent jurisdiction
7B. INTERLOCUTORY PROCEDURES II
1.
Discovery, Inspection, Notice to Produce Documents
Part 21 Rules
Reference should be made to definitions in the dictionary appended to the Rules
Evidence Act 1995 (NSW)
2.
Interrogatories
Part 22 Rules
3.
Medical Examination & Inspection of Property
Part 23 Rules
Evidence Act 1995 (NSW)
Part 31 & Practice Notes
Rules
Expert evidence & single expert
4.
Subpoenas & Notice to Produce at Trial
Part 33 Rules
Subpoenas
Part 34 Rules
Notice to produce at trial
Service and Execution of Process Act 1992 (Cth)
Botany Bay Instrumentation & Control v Stewart [1984] 3 NSWLR 98
9
R v Baines [1909] 1 KB 258
R v Hurle-Hobb [1945] 1 KB 165
National Employers Mutual General Association v Waind & Hill [1978] 1 NSWLR 377
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
5.
Admissions
Part 17 Rules
Section 70 Act
6.
Compromise & Settlement
Part 20 Division 4
Part 42 Division 3
Part 42 Division 4
Rules
Rules
Rules
Compromise
Costs
Calderbank v Calderbank [1946] Fam 93
Sections 71-77
Act
Settlement, legal incapacity
8.
HEARINGS AND JUDGMENT
1.
Preparation for Trial and Hearings
Part 29 Rules
Trial
Part 30 Rules
Assessment
Part 31 Rules
Evidence
Part 35 Rules
Affidavits
2.
Judgment
Part 36 Rule 4 Rules
Part 36 Rule 8 Rules
Part 36 Rule 12 Rules
Part 36 Division 4
Rules
Part 36 Interest, s.101
9.
Setting aside
APPEAL
10. ENFORCEMENT
Rules 36.7 Rules
Schedule 5 Rules
Part 37
Rules
Part 38
Rules
Part 39
Rules
Part 40
Rules
Part 7 Act ss.90-138
Interest
Payments by instalments
Examination
11. CASE MANAGEMENT
Section 15
Act
Sections 56, 57, 58, 61, 62, 63
Part 2 Rules
Part 3 Rules
Practice Notes as made available by the Courts
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12. LESS LITIGIOUS APPROACHES TO CONTENTIOUS MATTERS
1.
Managerial Judging
Rogers, A., “The managerial or interventionist judge” (1993) 3 Journal of Judicial Administration
96-110
2.
Mediation
Community Justice Centres Act 1993 (NSW)
Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 342, per Kirby P at 347 and 351
People v Snyder [129 MISC 2d 137] 137
3.
Mediation, Arbitration, Expert Evaluation and Other Dispute Resolution Processes
Part 4 and Part 5 Act
Part 20 Rules
Commercial Arbitration Act 2010 (NSW).
4.
Negotiation
Inns of Court School of Law, Negotiation, Blackstone Press, 1997
11
LECTURE OUTLINES
INTRODUCTION
The course, generally, involves a quite detailed study of the procedures pertinent to the conduct of a
civil matter in the Supreme Court of New South Wales.
It will mainly revolve around the conduct of a matter in the Supreme Court of New South Wales,
Common Law Division. It is also important, along with a study of the relevant provisions of the Civil
Procedure Act, 2005 and the Uniform Civil Procedure Rules, to understand the interaction with
provisions of the relevant practice notes.
The lectures will not be confined to any one practice note, but for general discussion, the significant
practice note for proceedings commenced by statement of claim, such as a personal injury claim or a
claim for damages for breach of contract, will fall within the ambit of practice Note SC CL5. The
appropriate provisions of this Practice Note will be introduced at the appropriate stage during the
course of the lectures.
Students should prepare for this by a preliminary, yet detailed study of PN SC CL 5 prior to the
commencement of lectures.
1.
GENERAL ISSUES
This lecture is divided generally into a consideration of the civil jurisdiction of the Supreme Court, both
original and at the appellate level. There is also a limited consideration of the District Court and Local
Court jurisdiction.
Also, one aspect which needs to be considered is the cross-vesting legislation. Notwithstanding the
Re Wakim decision, it is important to realise that State courts being cross-vested with Federal
jurisdiction is still in force (the ability of Federal courts to deal with State jurisdiction in certain
circumstances requires detailed consideration later).
As will be shown, the Supreme Court may exercise a very broad jurisdiction, but historical
developments and operation of the Federal/State system requires a detailed consideration.
There is a practical limitation which comes into force at times, especially in relation to common law
claims such as personal injury cases, debt recovery, where the amounts sought to be recovered are
limited, and that is the question of costs – so, for example, the Supreme Court may have jurisdiction to
entertain a debt recovery claim of, say, $50,000, but very real consideration will lead to a plaintiff in
most circumstances seeking to have this claim heard in the District Court, or, for lesser sums, even
the Local Court because of adverse costs consequences.
1(a) Original Jurisdiction – Civil
(a) The Supreme Court of New South Wales was established under the Charter of Justice 1823.
The Supreme Court Act of 1970, s.22 and s.23 provided: “s.22
The Supreme Court of NSW as formally established as the superior court of record
in NSW is hereby continued.”
“s.23
The Court shall have all jurisdiction which may be necessary for the administration
of justice in NSW.”
Section 5 Civil Procedure Act 2005 maintains jurisdiction.
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(b) The Supreme Court, being a superior court of record, has an inherent jurisdiction.
This inherent jurisdiction is extensive but is impossible to define precisely.
All courts have an incidental power to control their own process, which is quite distinct, cf
Grassby v R (1989) 168 CLR 1 (at 16-19). Also refer to the article by Mrs Dockery, 1997, 113
LQR 120.
Ritchie: Supreme Court Act, paras 23.15 and 23.20
Incidental Jurisdiction: Richie, Supreme Court Act, para 23.25
(c) Aspects wherein the Supreme Court’s jurisdiction is extended.
Historically, service was only effective when carried out on a person within the jurisdiction.
Extension of service has been achieved under:(i)
the Service & Execution of Process Act 1992 (Cth) – within Australia (s.15);
(ii)
alternatively to (i), Part 10 R3 (in the Supreme Court);
(iii)
service outside Australia Part 11, referencing schedule 6;
(iv)
Other enactments which can have the effect of extending jurisdiction include:-


Foreign Judgments Act 1991 (Cth)
Jurisdiction of Courts (Foreign Land) Act 1989 (NSW) permits the court, at its
discretion, to exercise jurisdiction notwithstanding property outside NSW.
Other provisions of relevance include:(a) Sections 39 and 39A Judiciary Act 1903 (Cth)
(b) Cross-vesting legislation
(c) Commonwealth legislation, e.g. Competition and Consumer Act
(d) Limitations on jurisdiction include:(i)
Section 38 of the Judiciary Act 1903 which concerns itself with the exclusive
jurisdiction of the High Court.
(ii)
The Federal Court and Federal Circuit Court has jurisdiction in a wide range of
matters such as bankruptcy.
(iii)
Family law matters largely fall within the jurisdiction of the Family Court of
Australia and Federal Circuit Court, s.31 and s.31(1)(v) (Note: jurisdiction of the
local courts).
(iv)
Even in matters which can be described properly as a State province, the
jurisdiction of the Supreme Court can be ousted by specific statutory provisions,
e.g.:-


(v)
Land & Environment Court Act 1970 – more specifically s.20(1)(9e) and s.71
Consumer Trader & Tenancy Tribunal Act 2001 – s.5(2), s.21 and s.22
Costs implications
13
Generally, in claims for money, the District Court has jurisdiction to hear claims
up to $750,000 and the Local Court up to $100,000 (Note: Small Claims up to
$10,000).
But there are costs considerations. Generally, if a party is successful in an action
they will have the benefit of a costs order against the unsuccessful party. As a
way of trying to ensure lesser claims are brought in the appropriate court:

rule 42.34 – Supreme Court proceedings, other than for defamation, if the
judgment is for an amount less than $500,000, an order for costs will not
ordinarily be made.

rule 42.35 – District Court proceedings, if the judgment is for an amount
less than $40,000, an order for costs will not ordinarily be made.
The Supreme Court may also order a transfer to, appropriately, the District Court
or Local Court (Pt 9 C.P. Act) – ss.139-153.
1(b) Appellate Jurisdiction – Civil
(a) Appeal from Local Court:-



Appeal as of right to Supreme Court only on ground that involves a question of law alone
(s 75A Supreme Court Act, s.39(1) Local Court Act.
From Small Claims Division only lack of jurisdiction or denial of natural justice.
By leave in certain circumstances.
(b) Appeal from District Court:Section 127 District Court Act permits a party to appeal to the Supreme Court, as of right,
being at the Court of Appeal (s.48(2)(f) Supreme Court Act).
However, leave of the Supreme Court is required for an:



2.
Interlocutory order/judgment
Order/judgment costs alone
Appeal where the order etc. is under $100,000
Summary judgment
CROSS-VESTING LEGISLATION
Initially, the relevant courts which were able to be cross-vested with jurisdiction were the Federal
Court, Family Court and the State and Territory Supreme Courts, both with original and appellate
jurisdiction.
In relation to NSW, the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) vest jurisdiction:Section 4(3) Supreme Court of another State or Territory may exercise original jurisdiction with
respect to State matters.
Section 9
Enables the court to actually exercise jurisdiction.
(Note: Exception in criminal matters)
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With Commonwealth legislation, the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth):“s.4(1)Where the Federal or Family Court had jurisdiction in a civil matter, a State Supreme Court is
vested with Federal jurisdiction with respect to that matter (with exceptions, eg, certain
provisions Trade Practices Act, etc).”
Section 9
Gives power to exercise jurisdiction.
Bankinvest AG v Seabrook (1988) 14 NSWLR 711
BHP Billiton v Schultz [2004] 221 CLR 400
However, the position now effectively is that while State courts continue to be able to be vested with
Commonwealth jurisdiction, this is not so in relation to Federal courts (including the Family Court)
exercising State jurisdiction.
The impact of Re Wakim: ex parte McNally (1999) 73 ALJR 839.
3.

Basically, the majority decision held that s.9(2) of the Jurisdiction of the Courts (CrossVesting) Act 1987 was unconstitutional and therefore invalid.

Gave detailed consideration whether a State claim nevertheless may fall within the accrued
jurisdiction of a Federal court – the central issue involves the aspect of a single justiciable
controversy.
OVERVIEW OF CIVIL PROCEDURE ACT
(a) Consider the emphasis on case management:

Part 6, especially Divisions 1 & 2, of the Civil Procedure Act 2005
Practice Notes
(b) Specialist List Part 45
4.
JURISDICTIONAL LIMITS OF THE DISTRICT COURT AND LOCAL COURT
(a) District Court

The limit is $750,000 for general debt and damages claims (s.44 District Court Act).

Section 51, District Court Act confers a consent jurisdiction.

Division 2, District Court Act.
(b) Local Court

The jurisdictional limit is $100,000 ($60,000 for personal injury claims) in its General Division,
$10,000 in Small Claims Division.

Section 66 Local Courts Act permits extension for an amount not exceeding 20% in specified
circumstances.

Other provisions eg. s.34 Local Courts Act.
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5.
TRANSFER OF MATTERS BETWEEN THE SUPREME, DISTRICT AND LOCAL
COURTS
(a) Transfer to higher court, Part 9 Division 1, Civil Procedure Act.
(b) Transfer to lower court, Part 9 Division 2, Civil Procedure Act.
(c) Transfer between Local Courts, Part 9 Division 3, Civil Procedure Act. Part 44 Rules Transfer
of proceedings between Local Courts.
NOTE: In considering the course of procedure to be followed, a typical example of a matter
commenced by Statement of Claim in the Supreme Court Common Law Division will be utilised. This
will entail, as well, a consideration of Practice Note SC CL 5, which will be examined in some detail.
6A. INITIATING CIVIL ACTIONS 1
6A(3)
PART 5 – DISCOVERY, PART 5
Procedures under Part 5:
A.
B.
C.
Discovery to ascertain prospective defendant’s identity or whereabouts
Discovery of documents from prospective defendant
Discovery of documents from other persons
Examine (A) in detail 5.2
Step 1
Step 2
Apply to court for order
What order can be made
Procedural steps:






Commence by summons or notice of motion
Supported by affidavit
Application, with affidavit, must be served personally
Conduct money 5.2(5) required for order. Extra expense
Orders
Consider requirements under case law
5.2(8)
5.2(7) (consider evidence required)
5.2(7)
5.2(6)
5.2(2) and (3)
Examine (B) in detail, Discovery 5.3 (prospective defendants):



Affidavit required
Needs to address 1(a), (b) and (c)
Relevant documents
Examine (C) in detail, Discovery 5.4 (other persons)

Possession of document relates to any question in the proceedings
Generally:




6A(4)
Part 21 Division 2 (generally discovery) applies to Discovery under Part 5 (5.5)
5.7 privilege remains available to person against whom order is made
5.8 general provision for costs and expenses
5.6 applicant for order may have to provide security for costs
PART 7 – PARTIES TO PROCEEDINGS AND REPRESENTATION
(a) Division 4 – Persons under legal incapacity
16
Person under legal incapacity:



Not to commence or carry on proceedings except by tutor
If a defendant, tutor needs to enter an appearance
Court may appoint/remove tutors
Tutors
7.14 & 7.16
7.17
7.18
7.15
(b) Division 5 – Business Names
Persons are to sue and be sued in own names and not under any
business name
7.19
However, procedure available to commence proceedings where
an unregistered business name is involved
7.20, 7.21 & 7.22
(c) Division 7 – Appointment and Removal of Solicitors





Act by solicitor
Especially change of solicitor/agent
Removal of solicitor
Withdrawal of solicitor
Effect of change
7.24, 7.25
7.26
7.27
7.29
7.30
(d) Division 2 – Representation
7.6, 7.7
(e) Division 1 – Corporation in Proceedings
7.1, 7.2
6A(4)
PART 6 - JOINDER OF CAUSES OF ACTION AND PARTIES
(a) Joinder of causes of action
6.18
(especially consider the impact of Port of Melbourne
Authority v Anshun Pty Limited (1981) 147 CLR 589).
(b) Joinder of parties
1.
2.
3.
4.
5.
6.
7.
General rule
Joint entitlement
Joint and several liability
Court join parties
No joinder for costs
Third party application
When proceedings commence on joinder
6.19
6.20 & 6.25
6.21
6.24
6.26
6.27
6.28
(c) Removal of parties



6A(6)
General order
Effect of changes
Substituting and general conduct
6.29
6.30, 6.31
6.32
PART 6 - ORIGINATING PROCESS
(a) Only two forms of originating process:

Statement of Claim
Summons
Form 3A, 3B
Form 4A, 4B
17
(b) Consider:
(i)
(ii)
(iii)
(iv)
(v)
When a Statement of Claim is mandatory
When a Summons is mandatory
When a choice is available
Where incorrect procedure has been adopted
Time limits for service
6.3
6.4
6.2(2) and 6.4(4)
6.5 & 6.6
6.2(4) & (5)
(c) Contents of originating process
Part 6 Division 4 (6.12ff)
(d) Especially note the summons must specify a return date
6.15
6A(7)
PARTS 6 & 14
PLEADING PRINCIPLES
(a) What is a pleading document?
Dictionary to Rules (after
Schedule II)
(b) Progress of pleadings:(i)
(ii)
(iii)
(iv)
(v)
Statement of Claim served
Defence within 28 days
Reply
No further pleadings
Note: Cross claims
14.3
14.4
14.5
(c) General approach to drafting
(d) Rule provisions
a.
b.
c.
d.
e.
f.
g.
h.
i.
Relief claimed
Pleadings in paragraphs
Facts not evidence
Brevity
Effect of documents
Common money counts
Specific matters to be pleaded
Interest to judgment
Interest after judgment
6.12
14.6
14.7
14.8
14.9
14.12
14.14
Section 100 & Practice Notes
Section 101
(e) Other relevant provisions



No specific claim - unliquidated damages
Condition precedent
Possession of land



Consistency of allegations of fact
Property (Relationships) Act 1984
Part 14 generally
14.13
14.10 &14.11
14.15 & short form
PN SC CL 6
14.18
14.21
(f) Defence
a.
b.
c.
d.
e.
f.
Admissions and traverse
Defence of tender
Joinder of issue
Defence of extinction of title or right
Time
Contributory negligence
(g) Striking out pleadings
14.26
14.25
14.27
14.29
14.3
14.16
14.28
18
6A(8)
OBLIGATIONS ON PARTIES AND LEGAL PRACTITIONERS
(a) Verification of pleadings
(b)
(c)
(d)
(e)
(f)
Case management
Costs orders against parties/legal practitioners
Civil Liability Act 2002, and relevant provisions
Legal Profession Act 2004
Cases: Degiorgio v Dunn (No 2)
Lemoto v Able Technical Pty Ltd
Treadwell v Hickey
6A(9)
Part 14 Division 4
(14.23ff)
Sections 56 & 57
Divisions 5B and 5C
PARTICULARS
(a) Requirements under the Rules for pleadings









Pleadings, give all necessary particulars
Scott Schedule requirement
Fraud
Condition of mind
Negligence, etc
Out of pocket expenses
Exemplary and aggravated damages
Manner of giving particulars
Property (Relationships) Act 1984
15.1
15.2
15.3
15.4
15.5
15.6
15.7 & 15.8
15.9
15.11
(b) Practical approach


Informal request for further and better particulars
Order for particulars
(c) Personal injury case
15.10
Part 15 Division 2 (15.12 ff)
6B. INITIATING CIVIL ACTIONS II
6B(1)
PRELIMINARY CONSIDERATION OF COSTS





6B(2)
General rule – costs follow the event
Indemnity costs
Interlocutory applications
Legal Profession Act
Smyth Orders
42.1 & 42.2
42.5
42.7
ss.364 & 365
42.32
COMMENCEMENT OF PROCEEDINGS


Filing
Validity for service
4.10 & 4.12
6.2(4)
19
6B(3)
SERVICE
(a) Overview
Consider:
Documents requiring personal service
Ordinary service
Service outside NSW but within Australia
Service outside Australia
(b) General service
A. Personal service




When required
How effected generally
Proof of identity
On entities
o Corporations Law
o On Crown Solicitor
o On judicial officers
o On inmates
o Keeping house
10.20
10.21
10.27
10.22
10.23
10.24
10.25
10.26
B. Other means of achieving service of originating process







In accordance with agreement (note: land)
Where defendant under unregistered business name
Where defendant under registered business name
Partner in limited partnership
Service on person under legal incapacity
Acceptance by solicitor
Substituted and informal service (and possession claim)
10.6
10.9
10.10
10.11
10.12
10.13
10.14 & 10.15



Service in another court
Service in proceedings for possession of land on occupier
Waiver of objection to service
10.18
10.15 & 6.8
10.19
C. Manner of service of documents (generally)
 Service of injunctions
10.5
10.17
(c) Service outside NSW, within Australia


Alternatives, 10.3 or Service & Execution of Process Act 1992 (Cth)
Commonwealth Act: o Section 9 on companies
o Section 11 proof of service
o Section 15 originating process
o Section 16 notice
o Section 17 time for appearance (generally, 21 days)
(d) Service outside Australia


Part 11 applies to Supreme Court
Part 11.2 refers to Schedule 6 for circumstances where originating process may be served:o Notice required
11.3
o Leave to proceed if no appearance
11.4
o Service of other documents
11.5
o Mode of service
11.6
20


6B(4)
o Setting aside originating process served outside Australia
11.7
Service may be effected in accordance with Attorney General’s arrangements
Part 11 Division 2
Service under the Hague Convention
Part 11A
APPEARANCE





No step without notice of appearance
How entered
Time for appearance
Submit to judgment
Set aside service
6B(5)
DEFENCES AND FURTHER PLEADINGS
(Dealt with under Pleadings)
6B(6)
CROSS CLAIMS




6B(7)
Cross claims
Note limitation
Set off
Part 9 Rules
INTERPLEADER
6.1
6.9
6.10
6.11
12.11
Section 22
Section 22(2)
Section 21
Part 43 Rules
Two procedures:


6B(8)
Stakeholder’s interpleader
Sheriff’s interpleader
Generally
Division 2
Division 3
Division 4
AMENDMENT
(a) Amendment of statement of claim


Once within time
Addition
19.1, 19.4
19.4
(b) Any document – court may order
Section 64
(c) Amendment of originating process after relevant limitation period
Section 65
(d) Court to consider dictates of justice
Section 58
(e) General procedure: Amendment to add or remove parties
 Duration of leave or consent
 Mode of amendment
19.2 Rules
19.3
19.5 & 19.6
(f)
General principles in exercise of discretion: Section 56, 57 & 58
 Consider decisions under previous rules, collected in extract from
Ritchie
 AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
21
(g) Costs – Amendment without leave
42.7
7A. INTERLOCUTORY PROCEDURES 1
7A(1)
NOTICE OF MOTION
An important procedure to obtain orders from the court, once proceedings have been commenced, up
to, generally, final orders.
The need is to identify the orders you need from the court and to draft an affidavit(s) which provides
the necessary evidence to support the orders.
(a) Motion







Part 18
Interlocutory applications and other applications to be by motion
Notice generally to be served
18.1, 6.4(2)
18.2 and time 18.4,
also 18.5
Contents 18.3, especially (f) - state concisely the nature of the proposed order
All applications, as far as practicable, to be in the one motion
18.6
May proceed ex parte
18.7
Further hearing and directions
18.8 &18.9
Costs
42.7
(b) Evidence by affidavit








Part 35
Evidence to be by affidavit
Cross-examination of deponent
Affidavit divided into paragraphs
Alterations
Annexures and exhibits
Affidavits by persons who can’t read
Each page be signed
File and service
31.2
35.2
35.4
35.5
35.6
35.7
35.7B
35.9 & Practice Notes
(c) Evidence in relation to interlocutory applications




7A(2)
Part 31 generally
Evidence Act generally
General evidentiary principles
Hearsay section s.75 Evidence Act
DEFAULT JUDGMENT
PART 16
(a) When is a party in default?
16.2
(b) Procedure
16.3


Affidavit of service
Affidavit in support
(c) Requirements and judgments/orders depend on nature of claim




Possession of land
Detention of goods
Debt or liquidated claim
Unliquidated damages
16.4
16.5
16.6
16.7
22



Mixed claims
Costs alone
Appropriate judgment
(d) Setting aside default judgment

16.8
16.9
16.10
36.16(1) &36.16(2) (a) (c), especially 16(2)(a)
Setting aside for irregularity etc
36.15
Cases
(i)
Grimshaw v Dunbar [1953] 1 QB 408 sets out the various factors to be considered, especially
default judgment for a liquidated demand
7A(3)
SUMMARY DISPOSAL AND DISPOSAL
(a) Summary judgment
13.1
Requires:



Evidence of facts
Evidence of belief no defence to claim
Stay pending cross claim
(b) Frivolous and vexatious proceedings
13.2
13.4
Grounds:



Frivolous or vexatious
No reasonable cause of action
Abuse of process
Proceeding be dismissed
(c) Striking out pleadings

14.28
Pleadings be struck out on grounds outlined
(d) Judgment on admissions
17.7
(e) Judgment by agreement, consent orders
36.1A

(f)
(Note non-disclosure of orders)
Acknowledgment by defendant of liquidated claim
(g) Effect of dismissal & costs
7A(4)
s.91, 42.20
OTHER FORMS OF DISPOSAL
(a) Discontinuance



20.34
Discontinuance by consent or by leave
Effect of discontinuance
Costs consequence
- Usually plaintiff pays costs
- Stay to secure costs
Part 12
12.1
12.3, 12.4
42.19
12.4
23
(b) Withdrawal of appearance or pleading
12.5, 12.6
(c) Dismissal for lack of progress
Part 12 Division 3 (also
Practice Note)

Failure to proceed with due dispatch
- Additional grounds Supreme Court, other courts
- Cost consequences
- Stay to secure costs
- Effect of dismissal
12.7
12.8, 12.9
42.20
12.10
Section 91
(d) Power of the Court to give directions
Section 61 (3)
(e) Setting aside originating process
12.11, 11.7
7A(5)
SECURITY FOR COSTS
Note: Amendments effective August 2013
General outline: provision by the plaintiff for the
defendant costs if the defendant is ultimately successful,
but limited grounds
Manner of giving security
failure to give security
Part 42 Division 6
Section 1335 Corporations Law
Inherent jurisdiction
Dismissal by order
7B. INTERLOCUTORY PROCEDURES II
7B(1)
DISCOVERY INSPECTION AND
NOTICE TO PRODUCE DOCUMENTS
PART 21
NOTE: Limitations imposed by:


PN SC Eq 11 – Disclosure in the Equity Division
PN LC CIV 1 - Limitation in civil matters
(1) Note two distinct procedures
(a) Order for Discovery
(b) Notice to produce for inspection
21.2
21.10
(2) Definition provisions are important
Definitions, especially
Excluded document
Relevant to a fact in issue
Privilege
21.1
21.1
Dictionary
(3) (a) Order for Discovery
Need to specify documents
(b) Not available personal injury claims except
“special reasons”
21.2
21.8
(4) Procedural steps:(a)
List of documents, generally provided within 28 days
- Contents of list
- Affidavit supporting
- Solicitor’s certificate
21.3
21.4
21.4
if
24
(b)
(c)
(d)
Documents then made available
Documents subsequently found
Restriction on disclosure of discovered documents
(5) What documents may be privileged
(a)
(b)
(c)
(d)
21.5
21.6
21.7
Dictionary
Div. 1, Part 3.10. Evidence Act
Protected, section 126B Evidence Act
Not be adduced pursuant 126H Evidence Act
Section 128 Evidence Act or s.87 Civil Procedure Act
- Tends to prove
(i) committal of an offence, or
(ii) liable to civil penalty
Information use contrary to section 129 Evidence Act
Evidence, matters of State, section 130 Evidence Act
Information, s.131 Evidence Act
Information, admission contrary to any Act
(e)
(f)
(g)
(h)
But not where Court declares that no privilege applies.
(6) Notice to Produce Before Hearing
(Contrast with Notice 10 Produce at Trial 34.1)
(a) What document may be required to be produced
(b) Response to notice
(c) Not available in personal injury claims except
“special reasons” and court orders
7B(2)
INTERROGATORIES
Part 21 Div 2
21.10
21.11
21.12
PART 22
(a) When available and restrictions:-
By order, at any stage, verified or not
Not available personal injuries unless special reasons
Application for order be accompanied by draft
interrogatories
Object to order to answer on specific grounds
(b) Answers to interrogatories
-
How answer
Insufficient answer, remedy available
22.1
22.1(3)
22.2
22.3
22.3(2)
23.4
(c) If default
22.5
(d) Answers may be used as evidence
22.6
7B(3)
PART 23
MEDICAL EXAMINATION AND INSPECTION OF PROPERTY
(a) Medical examination
-
Notice for medical examination
Expenses attending
Order for examination
Own expert attend
(b) Rehabilitation Assessment
23.2
23.3
23.4
23.5
23.7
25
(c) Inspection of property
(d) Default
-
-
23.8
Evidence Act, sections 53, 54
23.9
Effect if plaintiff
Effect if defendant
(e) Expert evidence
Part 31
Prior direction
Expert and hospital reports to be served
If served, report is admissible in trial without jury
If not served, report is not admissible
If expert required for cross-examination:Party wishing to cross-examine has to
procure attendance
If expert is required but does not attend the report
may not be tendered
Expenses of expert
Subpoena on expert
Expert witnesses to agree to code of conduct
Supplementary experts’ reports
(f)
Expert appointed by Court
See Part 31.46
(g) Position in District and Local Courts
31.30
(h) Single expert
Sub division 4, Part 31
Also, Practice Notes S.C. Gen 10 & Gen 11
7B(4)
SUBPOENAS AND NOTICE TO PRODUCE AT TRIAL
PARTS 33 & 34
(a) Subpoena
-
To attend to give evidence
Subpoena to produce
For both
(b) Form
33.3
(c) Service
33.5 & 33.6
-
Personal, Service and Execution Process Act
Other methods
Conduct money
33.6(1)
(d) Costs and expenses
33.11
(e) Inspection
33.9
(f)
33.12, s.97 CPA &
s.194, Evidence Act
Failure to comply
(g) Setting aside
-
33.4
Botany Bay Instrumentation & Control v Stewart [1984] 3 NSWLR 98
R v Barnes [1997] 1 KB 258
26
-
R v Hurle-Hobb [1945] 1 KB 165
National Employer Mutual General Association v Waind & Hill [1978] 1 NSWLR 377
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
(h) Practice Notes – SC Gen 18 & 19
(i)
Notice to Produce at Hearing
Part 34
Available only to ensure production by a party.
7B(5)
ADMISSIONS
(a) Part 17 Procedure
(i)
(ii)
(iii)
(iv)
(v)
(vi)
Voluntary admissions of fact
Notice to admit facts
Notice to admit documents
Admissions of documents discovered
Restricted effect of admissions
Judgment on admissions
(b) Costs implications with Notices to Admit
17.2
17.3
17.4
17.5
17.6
17.7
42.8 & 9
(c) Section 70 C.P. Act
Informal proof and admissions
7B(6)
COMPROMISE AND SETTLEMENT
NOTE: Amendments June 2013
(1) Compromise
(a) Compromise
(i)
Impact on costs
Part 20 Div 4
Part 42 Div 3
(b) Procedure as to compromise
(i) Making of offer
20.26
(c) Acceptance
- withdrawal of acceptance
20.27
20.28
(d) Failure to comply with accepted offer
20.29
(e) Disclosure of offer
20.30
(f)
20.31
Compromise in certain types of proceedings S.Ct.
(g) Offer to contribute
(2) Costs impact
(If accepted costs orders)
(a) Plaintiff makes offer, rejected, judgment no less
favourable than offer
(b) Defendant makes offer, rejected, judgment as
20.32
Part 42 Div 3
42.13A & 13
42.14
27
favourable as or less than offer
(c) Interest disregarded from day after offer made
(d) Miscellaneous
(e) Offer to contribute
42.15, 42.15A
42.16
42.17
42.17(4)
(3) Calderbank letters
Calderbank v Calderbank [1946] Fam 93
Costs, general power
42.1, 42.2, 42.5, s.98
(4) Settlements
(a) Power of court to determine questions about
compromises and settlements
(b) Settlement of claims/proceedings by person under
legal incapacity
payment of money
8.
HEARINGS & JUDGMENT
Section 73
Sections 75 & 76
PART 29
8(1) PREPARATION FOR TRIAL AND HEARINGS
(a) Trial
Beginning party etc.
29.1
(b) Requisition for jury
29.2
(c) Generally
(d) Order of evidence and address
29.3 to 29.5
29.11 to 29.14
29.6
(e) Where one party absent
29.7
(f)
Plaintiff’s application – dismissal
29.8
(g) Defendant’s application – dismissal
29.9
(h) Opposite party – judgment for want of evidence
29.10
(i)
8(1)(b)
8(1)(c)
8(1)(d)
Dismissal – affect
Section 91
Assessment
Part 30
30.1 to 30.3
Damages including future at date of assessment
30.3
Evidence
Part 31
General:
 At interlocutory hearing, by affidavit
 At trial, statement of claim, oral (unless order)
 Witness statements, requirements
 Notices under ss 67 or 99 Evidence Act
 Evidence on commission
 Earlier evidence, same proceedings
 Other proceedings
31.2
31.1
31.4
31.5
31.6
31.8
31.9
Affidavits
Part 35
28



Cross-examination
Who may make
General requirements
-
8(2)
8(3)
Paragraphs
Alterations
Annexures & exhibits
Filing
35 r.2
35 r.3
Rule 4
Rule 5
Rule 6
Rule 9
JUDGMENTS
PART 36






Part 36
Rule 4
Rule 7
Rule 8
Rules 15, 16
Rule 17
Generally
When take effect
Interest rate, s.101, schedule 5
Possession of land
Setting aside
Slip order
SOME EXAMPLES OF COSTS ORDERS
 Smyth Order4 ( and practice notes)
 Bullock Order
 Sanderson Order
9.
APPEAL
PARTS 49 & 50
(a) Review and appeals within the Court
Part 49
(b) Appeals to the Court
Part 50
(c) Court Of Appeal
Part 51, P.N. SCCA1
10. ENFORCEMENT
(a) Consider the nature of the order sought to be enforced
(b) Especially, note procedures available for enforcement of judgment for payment of money,
discussed as follows:
(i)
Section 106, any one or more of



(ii)
Writ for the levy of property
A garnishee order
Supreme Court or District Court, a charging order
Order for examination
(iii) Additional methods Supreme Court


Section 108
Part 40 r.2
Appointment of a receiver of the income of the property of debtor
Sequestration of the debtor’s property (note 40.3)
(iv) For individual, procedure under the Bankruptcy Act (Cth)
29
For corporation, winding up procedure under Corporations Law
(v) NOT available:
- No arrest on mesne process,
by process of attachment of the person committal,
any writ of capias ad satisfaciendum
(vi) Stale judgments (12 years) require leave
Section 129
Section 130
Section 134
(c) Enforcement – doing or abstaining from any act
Supreme Court & District Court, Part 40.6, enforced by



Committal
Sequestration including officer of corporation
Note especially, service prior
40.7
(d) The specific procedural requirements for each of the procedures, including:
(e)
11.

Order for examination
s.108, Pt 38

Writ for levy of property (goods, land)
ss.109-116
Pt 39.1-39.33

Garnishee Orders
ss.117 – 125
Pt 39.34 – 39.43

Charging Orders
ss.126– 128
Pt 39.44, 45

Payment by Instalments
s.107
Pt 37

Appointment of receiver
Pt 40.2

Sequestration
Pt 40.2, 40.3

General
Pt 39.46 – Pt 39.52
Writ of possession
s 104 CPA
CASE MANAGEMENT
(a) The Act:
(i)
Section 15 concerns Practice Notes
(ii)
Section 56 – overriding purpose
(iii)
“just, quick and cheap resolution of real issues”
 To achieve this, case management
 Dictates of justice
 Elimination of delay
 Proportionality of costs
Section 57
Section 58
Section 59
Section 60
Directions - generally
Section 61
30
- Conduct of hearing
- Irregularities
(iv)
Section 62
Section 63
Other powers of the Court
Sections 64-73
(b) The Rules
(i) Case Management
(ii) Electronic case management
(iii) Costs
Part 2
Part 3
Part 42 & s.99
(c) Practice Notes – Supreme Court
(d) Specifically, recent District Court Practice Note, general case management
(e) Local Court – Case Management , Civil, General Division
12.
LESS LITIGIOUS APPROACHES TO CONTENTIOUS MATTERS – ADR
(a) Many methods available, with varying attributes
(b) Within the Court process:
(i)
Mediation
Part 4, ss.25-34 & Part 20 Rules
Mediation defined
Court may order referral (note part 20 r.3)
Duty to participate in good faith
Costs of mediation
Giving effect to any agreement arising
Privilege
Confidentiality
Mediator
Section 25
Section 26
Section 27
Section 28
Section 29
Section 30
Section 31
Section 33
Note: Mediation other than under Part 4 of the Act is available Section 34
(ii)
Arbitration of proceedings
Part 5, ss.34-55 & Part 20 Rules
Commercial Arbitration Act 2010 (NSW)
(c) Consider advantages and disadvantages, arising from resort to ADR
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Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 342, PER Kirby P at 347351
(d) Practice Note – S.C. Gen 6