D
L
LEGAL PROFESSION
ADMISSION BOARD
LAW EXTENSION COMMITTEE
This Guide includes the Law Extension Committee’s course information and teaching program and the
Leg al 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.

1
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.
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 logis tics 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

2 commencement of proceedings. This, presently, is in abeyance. Details will be advised in lectures.
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.
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.

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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.
Candidates will be expected to have a detailed knowledge of the prescribed topics:

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 will be held on Fridays commencing at 6.00pm. In the first half of the semester, they will be held in New Law School Lecture Theatre 106 (New LSLT 106). Lecture venues for the second half of the semester have yet to be confirmed.
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 May 2016:
4pm - 8pm
Sunday 29 May 2016:
8am - noon
New Law School
Lecture Theatre
106
New LSLT 106
New LSLT 106
Weekend School 2
Saturday 23 July 2016:
4pm - 8pm
Sunday 24 July 2016:
8am - noon
New Law School
Lecture Theatre
106
New LSLT 106
New LSLT 106
For the period from 21 April to 30 May 2016, LexisNexis is offering our students a special discount and free shipping on purchases made through the LexisNexis e-store at www.store.lexisnexis.com.au
. Students quoting the promo code LECW2016 will receive a 15% discount on all text titles (except for those authored by John Carter). This discount is not limited to the prescribed or recommended texts for our courses. Students should, however, still compare LexisNexis’s discounted price with that of other outlets. The Co-op Bookshop, for example, offers a discount on texts sold to its members.
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 as amended

Uniform Civil Procedure Rules 2005, including Practice Notes as amended

Supreme Court Act 1970, ss 23, 48

District Court Act 1973, ss 44-51, 127, 133,134,134A, 134B

Local Court Act 2007, ss 29-35, 38-41

New South Wales Civil Procedure Handbook 2016, Hamilton, Lindsay, Morahan & Webster,
Thompson Reuters

Civil Procedure in NSW, 3 rd ed., Kumar, Legg & Vickovich, Thompson Reuters, 2015

Evidence Act 1995 (NSW) as advised
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 , 6th ed. LexisNexis, 2015

Sourdin Tania, Alternative Dispute Resolution , 5th ed., Thompson Reuters

Spender D., Hardy S., Dispute Resolution in Australia , 3 rd ed., Thompson Reuters

Boniface, Kumar & Legg, Principles of Civil Procedure in New South Wales , 2nd ed. Thomson
Reuters, 2012

The College of Law NSW Practice Papers 2106 (Vol 4) LexisNexis

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 L aw, 11th ed. Thomson Reuters, 2014

Jones D., Commercial Arbitration in Australia , 2nd ed., Thomson Reuters 2013
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.

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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.
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 18 July 2016 (Week 9)
To obtain the Practice and Procedure assignment questions for the Winter Session 2016, please follow the instructions below:
1. Register online with the LEC (see page 26 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.
From LPAB Examination paper, March 2015, Question 5.
The essential obligation imposed on courts, parties and legal advisers and the application of the Act and the Rules is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”
(section 56 CPA).
For this purpose (as well as other procedures) the various courts have introduced practice notes. Over the years, since their first introduction, the practice notes have been refined and developed to deal with specific matters and their attendant procedures.
A plaintiff may commence proceedings for a range of matters in the Equity Division of the Supreme
Court. Certain types of matters in the Equity Division fall within the province of a specific practice note, for example, family provision claims are dealt with in PN SC Eq 7.

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General equity matters whether commenced by statement of claim or by summons have procedures detailed in a number of practice notes, specifically:
PN SC Eq 1 Supreme Court Equity Division – Case Management
Expert evidence in the Equity Division PN SC Eq 5
PN SC Eq 11 Disclosure in the Equity Division
PN SC Gen 4 Affidavits
Assume as solicitor you are conducting two different claims in the equity division for two different plaintiffs.
Matter A
A claim for breach of a consecutive trust and damages, commenced by statement of claim. It will entail a number of differing versions of facts, also expert valuation evidence. Evidence will be ordered to be by affidavit.
Matter B
A claim for provision to be ordered under the Succession Act out of the estate of the deceased. The estate is worth $600,000. There needs to be valuations. There will not be much dispute of facts except over your client’s relationship over the years with her mother (the deceased).
In brief outline, compare and contrast the procedures prescribed under the relevant practice notes applicable to Matter A/Matter B which are designed to achieve the overriding objective of section 56 CPA.
You may assume all relevant procedure for the family provision claim is fully contained in PN
SC Eq 7.
In your answer you need only to address the following aspects of procedure:
(i) any specific evidence which is required under the practice note;
(ii) evidence of an expert nature, including valuations of property;
(iii) how matters can be disposed of by consent;
(iv) once the matter is listed for final hearing, procedures in preparation for hearing designed to minimise the actual hearing time.

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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) Limitations imposed by costs rules
(iii) 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 1.11 to 1.13
2. Preparation and Filing of Documents
Part 4 Rules
3. Preliminary Discovery
Part 5 Rules

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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. Originating Process
Part 6 Division 1
Part 6 Division 2
Part 6 Division 4
Rules
Rules
Rules
Section 100 Interest
7. Pleading Principles
Part 6 Division 4 Rules
Part 14 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 Rules Generally
Part 15 Division 2 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
Part 14 Division 4
6. Cross Claims
Rules
Section 22 Act Cross Claim
Section 21 Act Set off
Part 9 Rules

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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
Part 17 Rule 7
Rules
Rules
Part 20 Rule 33 & 34 Rules
4. Other Forms of Disposal
Part 12 Division I Rules Discontinuance
Part 42 Rule 19
Part 12 Division 2
Rules
Rules
Costs
Withdrawal
Rules Dismissal Part 12 Division 3
Section 61 Act
5. 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

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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
Part 36 Interest, s.101
Rules Setting aside
9. APPEAL
10. ENFORCEMENT
Rules 36.7 Rules
Schedule 5 Rules Interest
Part 37 Rules Payments by instalments
Part 38
Part 39
Rules Examination
Rules
Part 40 Rules
Part 7 Act ss.90-138
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

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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.:-

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
(v) Costs implications

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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:-

Interlocutory order/judgment


Order/judgment costs alone
Appeal where the order etc. is under $100,000

Summary judgment
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.

Basically, the majority decision held that s.9(2) of the Jurisdiction of the Courts (Cross-
Vesting) 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.
(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
(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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(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(3) PART 5 – DISCOVERY, PART 5
Procedures under Part 5:
A. Discovery to ascert ain prospective defendant’s identity or whereabouts
B. Discovery of documents from prospective defendant
C. Discovery of documents from other persons
Examine (A) in detail 5.2
Step 1 Apply to court for order
Step 2 What order can be made
Procedural steps:

Commence by summons or notice of motion

Supported by affidavit

Application, with affidavit, must be served personally
5.2(8)
5.2(7) (consider evidence required)
5.2(7)

Conduct money 5.2(5) required for order. Extra expense 5.2(6)

Orders

Consider requirements under case law
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:

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
6A(4) PART 7 – PARTIES TO PROCEEDINGS AND REPRESENTATION
(a) Division 4 – Persons under legal incapacity

17
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
(b) Division 5 – Business Names
Persons are to sue and be sued in own names and not under any business name
However, procedure available to commence proceedings where an unregistered business name is involved
(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
(d) Division 2 – Representation
(e) Division 1 – Corporation in Proceedings
6A(4) PART 6 - JOINDER OF CAUSES OF ACTION AND PARTIES
(a) Joinder of causes of action
(especially consider the impact of Port of Melbourne
Authority v Anshun Pty Limited (1981) 147 CLR 589).
(b) Joinder of parties
1. General rule
2. Joint entitlement
3. Joint and several liability
4. Court join parties
5. No joinder for costs
6. Third party application
7. When proceedings commence on joinder
(c) Removal of parties

General order

Effect of changes

Substituting and general conduct
6A(6) PART 6 - ORIGINATING PROCESS
(a) Only two forms of originating process:-

Statement of Claim

Summons
7.14 & 7.16
7.17
7.18
7.15
7.19
7.20, 7.21 & 7.22
7.24, 7.25
7.26
7.27
7.29
7.30
7.6, 7.7
7.1, 7.2
6.18
6.19
6.20 & 6.25
6.21
6.24
6.26
6.27
6.28
6.29
6.30, 6.31
6.32
Form 3A, 3B
Form 4A, 4B

18
(b) Consider:
(i) When a Statement of Claim is mandatory
(ii) When a Summons is mandatory
(iii) When a choice is available
(iv) Where incorrect procedure has been adopted
(v) Time limits for service
(c) Contents of originating process
(d) Especially note the summons must specify a return date
6A(7) PARTS 6 & 14 PLEADING PRINCIPLES
(a) What is a pleading document?
(b) Progress of pleadings:-
(i) Statement of Claim served
(ii) Defence within 28 days
(iii) Reply
(iv) No further pleadings
(v) Note: Cross claims
(c) General approach to drafting
(d) Rule provisions a. b.
Relief claimed c. Facts not evidence d. Brevity
Pleadings in paragraphs e. Effect of documents f. Common money counts g. Specific matters to be pleaded h. Interest to judgment i. Interest after judgment
(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
(f) Defence a. Admissions and traverse b. Defence of tender f. Contributory negligence
(g) Striking out pleadings c. Joinder of issue d. Defence of extinction of title or right e. Time
Dictionary to Rules (after
Schedule II)
14.3
14.4
14.5
6.12
14.6
14.7
14.8
14.9
14.12
14.14
Section 100 & Practice Notes
Section 101
6.3
6.4
6.2(2) and 6.4(4)
6.5 & 6.6
6.2(4) & (5)
Part 6 Division 4 (6.12ff)
6.15
14.13
14.10 &14.11
14.15 & short form
PN SC CL 6
14.18
14.21
14.26
14.25
14.27
14.29
14.3
14.16
14.28

19
6A(8) OBLIGATIONS ON PARTIES AND LEGAL PRACTITIONERS
(a) Verification of pleadings
(b) Case management
(c) Costs orders against parties/legal practitioners
(d) Civil Liability Act 2002 , and relevant provisions
(e) Legal Profession Act 2004
(f) Cases: Degiorgio v Dunn (No 2)
Lemoto v Able Technical Pty Ltd
Treadwell v Hickey
6A(9) 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
(b) Practical approach

Informal request for further and better particulars

Order for particulars
(c) Personal injury case
Part 14 Division 4
(14.23ff)
Sections 56 & 57
Divisions 5B and 5C
15.1
15.2
15.3
15.4
15.5
15.6
15.7 & 15.8
15.9
15.11
15.10
Part 15 Division 2 (15.12 ff)
6B(1) PRELIMINARY CONSIDERATION OF COSTS

General rule – costs follow the event

Indemnity costs

Interlocutory applications

Legal Profession Act

Smyth Orders
6B(2) COMMENCEMENT OF PROCEEDINGS

Filing

Validity for service
42.1 & 42.2
42.5
42.7 ss.364 & 365
42.32
4.10 & 4.12
6.2(4)

20
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
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)

Service in another court

Waiver of objection to service

Service in proceedings for possession of land on occupier
10.20
10.21
10.27
10.22
10.23
10.24
10.25
10.26
10.6
10.9
10.10
10.11
10.12
10.13
10.14 & 10.15
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 o Service of other documents o Mode of service
11.4
11.5
11.6

21
 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
6B(4) APPEARANCE

No step without notice of appearance

How entered

Time for appearance

Submit to judgment

Set aside service
6.1
6.9
6.10
6.11
12.11
6B(5) DEFENCES AND FURTHER PLEADINGS
(Dealt with under Pleadings)
6B(6) CROSS CLAIMS

Cross claims

Note limitation

Set off

Part 9 Rules
6B(7) INTERPLEADER
Section 22
Section 22(2)
Section 21
Part 43 Rules
Two procedures:-
 Stakeholder’s interpleader
 Sheriff’s interpleader

Generally
6B(8) AMENDMENT
Division 2
Division 3
Division 4
(a) Amendment of statement of claim

Once within time

Addition
(b) Any document – court may order
19.1, 19.4
19.4
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

22
(g) Costs – Amendment without leave
42.7
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 18.1, 6.4(2)

Notice generally to be served 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

May proceed ex parte

Further hearing and directions

Costs
18.6
18.7
18.8 &18.9
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

Part 31 generally

Evidence Act generally

General evidentiary principles

Hearsay section s.75 Evidence Act
7A(2) DEFAULT JUDGMENT
(a) When is a party in default?
PART 16
16.2
(b) Procedure

Affidavit of service

Affidavit in support
16.3
(c) Requirements and judgments/orders depend on nature of claim

Possession of land 16.4

Detention of goods 16.5

Debt or liquidated claim 16.6

Unliquidated damages 16.7

23

Mixed claims 16.8

Costs alone 16.9

Appropriate judgment 16.10
(d) Setting aside default judgment 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 13.2
(b) Frivolous and vexatious proceedings
Grounds:

Frivolous or vexatious

No reasonable cause of action

Abuse of process
Proceeding be dismissed
(c) Striking out pleadings

(Note non-disclosure of orders)

Pleadings be struck out on grounds outlined
(d) Judgment on admissions
(e) Judgment by agreement, consent orders
13.4
14.28
17.7
36.1A
(f) Acknowledgment by defendant of liquidated claim
(g) Effect of dismissal & costs
7A(4) OTHER FORMS OF DISPOSAL
20.34 s.91, 42.20
(a) Discontinuance Part 12

Discontinuance by consent or by leave 12.1

Effect of discontinuance 12.3, 12.4

Costs consequence
- Usually plaintiff pays costs 42.19
- Stay to secure costs 12.4

24
(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 12.7
- Additional grounds Supreme Court, other courts 12.8, 12.9
42.20
12.10
Section 91
- Cost consequences
- Stay to secure costs
- Effect of dismissal
(d) Power of the Court to give directions
(e) Setting aside originating process
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
Section 61 (3)
12.11, 11.7
Part 42 Division 6
Section 1335 Corporations Law
Inherent jurisdiction
Dismissal by order if Manner of giving security failure to give security
7B(1) DISCOVERY INSPECTION AND
NOTICE TO PRODUCE DOCUMENTS
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
(2) Definition provisions are important
Definitions, especially
- Excluded document
- Relevant to a fact in issue
- Privilege
(3) (a) Order for Discovery
Need to specify documents
(b) Not available personal injury claims except
“special reasons”
(4) Procedural steps:-
(a) List of documents, generally provided within 28 days
- Contents of list
- Affidavit supporting
- Solicitor’s certificate
PART 21
21.2
21.10
21.1
21.1
Dictionary
21.2
21.8
21.3
21.4
21.4

25
(b)
(c)
(d) Restriction on disclosure of discovered documents
(5) What documents may be privileged
(a) Div. 1, Part 3.10. Evidence Act
(b)
(c)
(d)
Documents then made available
Documents subsequently found
Protected, section 126B
Section 128
Evidence Act
Not be adduced pursuant 126H
Evidence Act
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 (e)
(f)
(g)
(h)
Evidence, matters of State, section 130
Information, s.131 Evidence Act
Evidence Act
Information, admission contrary to any Act
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
(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
(c) If default
21.5
21.6
21.7
Dictionary
Part 21 Div 2
21.10
21.11
21.12
PART 22
22.1
22.1(3)
22.2
22.3
22.3(2)
23.4
22.5
(d) Answers may be used as evidence 22.6
7B(3) MEDICAL EXAMINATION AND INSPECTION OF PROPERTY PART 23
(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

26
(c) Inspection of property
- - Evidence Act , sections 53, 54
(d) Default
- Effect if plaintiff
- Effect if defendant
(e) Expert evidence
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
(g) Position in District and Local Courts
(h) Single expert
Also, Practice Notes S.C. Gen 10 & Gen 11
7B(4) SUBPOENAS AND NOTICE TO PRODUCE AT TRIAL
23.8
23.9
Part 31
See Part 31.46
31.30
Sub division 4, Part 31
PARTS 33 & 34
(a) Subpoena
- To attend to give evidence
- Subpoena to produce
- For both
(b) Form
(c) Service
- Personal, Service and Execution Process Act
33.3
33.5 & 33.6
- Other methods
- Conduct money
(d) Costs and expenses
(e) Inspection
(f) Failure to comply
33.6(1)
33.11
33.9
33.12, s.97 CPA & s.194, Evidence Act
(g) Setting aside 33.4
- Botany Bay Instrumentation & Control v Stewart [1984] 3 NSWLR 98
- R v Barnes [1997] 1 KB 258

27
- 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
Part 34 (i) Notice to Produce at Hearing
Available only to ensure production by a party.
7B(5) ADMISSIONS
(a) Part 17 Procedure
(i) Voluntary admissions of fact
(ii) Notice to admit facts
(iii) Notice to admit documents
(iv) Admissions of documents discovered
(v) Restricted effect of admissions
(vi) Judgment on admissions
17.2
17.3
17.4
17.5
17.6
17.7
(b) Costs implications with Notices to Admit
(c) Section 70 C.P. Act
Informal proof and admissions
7B(6) COMPROMISE AND SETTLEMENT
42.8 & 9
NOTE: Amendments June 2013
(1) Compromise
(a) Compromise
(i) Impact on costs
(b) Procedure as to compromise
(i) Making of offer
(c) Acceptance
- withdrawal of acceptance
(d) Failure to comply with accepted offer
(e) Disclosure of offer
(f) 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
Part 20 Div 4
Part 42 Div 3
20.26
20.27
20.28
20.29
20.30
20.31
20.32
Part 42 Div 3
42.13A & 13
42.14

28 favourable as or less than offer
(c) Interest disregarded from day after offer made
(d) Miscellaneous
(e) Offer to contribute
(3) Calderbank letters
Calderbank v Calderbank [1946] Fam 93
Costs, general power
(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(1) PREPARATION FOR TRIAL AND HEARINGS
(a) Trial
Beginning party etc.
(b) Requisition for jury
(c) Generally
42.15, 42.15A
42.16
42.17
42.17(4)
42.1, 42.2, 42.5, s.98
Section 73
Sections 75 & 76
29.1
29.2
29.3 to 29.5
29.11 to 29.14
29.6 (d) Order of evidence and address
(e) Where one party absent
(f) Plain tiff’s application – dismissal
(g) Defendant’s application – dismissal
(h) Opposite party – judgment for want of evidence
(i) Dismissal – affect
8(1)(b) Assessment
29.7
29.8
29.9
29.10
Section 91
Part 30
30.1 to 30.3
Damages including future at date of assessment
8(1)(c) Evidence
30.3
Part 31
General:

At interlocutory hearing, by affidavit 31.2

At trial, statement of claim, oral (unless order) 31.1

Witness statements, requirements 31.4

Notices under ss 67 or 99 Evidence Act 31.5

Evidence on commission 31.6

Earlier evidence, same proceedings 31.8

Other proceedings 31.9
8(1)(d) Affidavits Part 35

29

Cross-examination 35 r.2

Who may make 35 r.3

General requirements
- Paragraphs
- Alterations
- Annexures & exhibits
- Filing
Rule 4
Rule 5
Rule 6
Rule 9
8(2) JUDGMENTS

Generally

When take effect

Interest rate, s.101, schedule 5

Possession of land

Setting aside

Slip order
SOME EXAMPLES OF COSTS ORDERS
PART 36
Part 36
Rule 4
Rule 7
Rule 8
Rules 15, 16
Rule 17
8(3)

Smyth Order4 ( and practice notes)

Bullock Order

Sanderson Order
PARTS 49 & 50
(a) Review and appeals within the Court Part 49
(b) Appeals to the Court
(c) Court Of Appeal
Part 50
Part 51, P.N. SCCA1
(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

Writ for the levy of property

A garnishee order

Supreme Court or District Court, a charging order
(ii) 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)

30
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:

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

Appointment of receiver

Sequestration

General
(e) Writ of possession s.107
Pt 37
Pt 40.2
Pt 40.2, 40.3
Pt 39.46 – Pt 39.52 s 104 CPA
(a) The Act:
(i) Section 15 concerns Practice Notes
(ii) Section 56 – overriding purpose
“just, quick and cheap resolution of real issues”

To achieve this, case management Section 57

Dictates of justice Section 58

Elimination of delay Section 59

Proportionality of costs Section 60
(iii) Directions - generally Section 61

31
- Conduct of hearing
- Irregularities
(iv) Other powers of the Court
(b) The Rules
(i) Case Management
(ii) Electronic case management
(iii) Costs
(c) Practice Notes – Supreme Court
Section 62
Section 63
Sections 64-73
Part 2
Part 3
Part 42 & s.99
(d) Specifically, recent District Court Practice Note, general case management
(e) Local Court – Case Management , Civil, General Division
(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 33
Note: Mediation other than under Part 4 of the Act is available Section 34
Part 5, ss.34-55 & Part 20 Rules (ii) Arbitration of proceedings
Commercial Arbitration Act 2010 (NSW)
(c) Consider advantages and disadvantages, arising from resort to ADR
Section 25
Section 26
Section 27
Section 28
Section 29
Section 30
Section 31
Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 342, PER Kirby P at 347-
351
(d) Practice Note – S.C. Gen 6