FEB 2021 EXAM – CIVIL PAPER Question 1 Your client wants to withdraw an admission from defence on the day before trial. What do you do? (5 marks) - - - Assuming admission of fact was made by notice (r 17.1(1)) or because fact taken to be admitted (r 17.2(2)/17.3(2)), we require leave of court to withdraw admission ((r 17.2(3)/17.3(3)). Given proximity to hearing, leave unlikely to be given. May need to consider serving notice to dispute the admitted facts. However must advise client that (BR 37) that if we dispute fact, and fact is subsequently proved, we will be liable to indemnity costs of proving fact (r 42.8, 42.9). Given proximity of hearing, if we serve notice of dispute, other side may seek adjournment so evidence of disputed fact can be put on. Adjournment likely to be granted (s 66 + 58 CPA/BR 59). Question 2 On day of hearing - informal settlement discussions between solicitors - your solicitor tells you not to give the client any advice on settlement because there is "no immunity". Is that true? (5 marks) - - - - It is true that discussions concerning settlement of case, where that means there will be no judicial determination of case, means that advocates immunity will be not be applicable (Atwells). However, obliged to aid client to promote and protect client’s interests as best I can (BR 35), advise client of alternatives to fully contested hearing (BR 36), and aid client to understand issues so they can give proper instructions (BR 37). Would still advise client of alternatives to fully contested hearing because it is essential (BR 36) and to not discuss these alternatives would perhaps be in my interest and not clients, which would breach BR 35 (Howen). Duty to administration of justice (BR 23) and efficient administration of justice (BR 58) would also apply. Question 3 What can you tell a journo (approached unsolicited on day 3 of hearing). Can you confirm name, tell nature of client's case, comment on prospects? (5 marks) - - Can confirm the name of officer in charge provided that he has already given evidence and his evidence is completed (BR 77(a)), and provide a summary of the case generally, and issues (BR 77(a)). Cannot comment on the merits or prospects of a case currently before court (BR 76(a)). Any information cannot be known to be inaccurate and cannot disclose any confidential information (BR 76(a), (b)). - May be appropriate to seek clients views before answer any questions depening on nature of case (BR 35, 37, 78) and if unsure, would also speak to senior member of bar on my floor. Question 4 Your client gave an affidavit but loses voice on day 3 of the hearing and hasn't given evidence yet or xxn - what happens re giving evidence in hearing/ can you still use the affidavit? (??? marks) - - - Generally, evidence in chief in hearing is given by way of affidavit (r31.1(3) + 31.2). A person who has given an affidavit can be required for cross-examination (r 35.2(1)) but must be given reasonable time before hearing (r 35.2(2)). Unclear if reasonable notice has been given and if client required. Assuming they are, seek short adjournment for client to recover voice (BR 59, s 66 CPA). Provided affidavit was served a reasonable time before intended to rely on client’s affidavit, we will not leave of court to rely on affidavit (r 10.2). Affidavit must also must meet requirements in UCPR (r 35.3A – r 35.8), however irregularity in affidavit does not invalidate it (r 35.1). Also must comply with the SC PN Gen 4 concerning affidavits. Court can make orders/directions for how witnesses give evidence (r 31.2). Everyone considered competent to give evidence (s 12). Client’s evidence does not become inadmissible merely because they are no longer competent to give evidence (s 13(7) EA). Court has broad power to control questions of witness/giving evidence (s 26 EA) + r 31.2)). Question 5 In discovery, the other side accidentally sends you LPP docs then requests them back. Your solicitor wants to use them. What do you do? - - - Assuming order for discovery was made (r 21.2) and party has provided a list of documents (r 21.3) including an affidavit (Part 35, SC Gen 4) setting out list of produced docs, any docs not possessed, and docs over which privilege is claimed (r 21.4), it is likely other side will object to production of privileged docs (r 1.9(1)(a)). Other side can still object on privilege even though doc was produced by accident (r 1.9(4)). Access to document must not be granted until objection is overruled (r 1.9(4A)). In order to use document, likely other side would put on NOM (r 18.1) setting out objection + affidavit setting out claim for privilege and reason for mistake (r 1.9(5)). Document can be produced to court without loss of privilege (r 1.9(6)). Court would need to determine whether other sides conduct was inconsistent with maintence of privilege (Mann v Carnell). Failure to do so would be disreputable, prejudicial to administration of justice and bring the legal profession into disrepute: BCR 8. Not mere mouthpiece: BCR 42. Question 6 Other side's witness gave affidavit in English but they tell you the witness doesn't speak English. They also tell you the witness wants to appear via video link. You find these things out on the first day of the hearing. What do you do? - Assuming affidavit otherwise complies with requirements (Part 35, r 10.2. SC Gen 4), Object to affidavit on basis that certification of affidavit has not been provided (r31.62(1)) by an accredited interpreter (r 31.59(1)) who has agreed to be bound by code of conduct (r 31.61, sch 7A). - Appears that it would have been appropriate for court to make orders concerning affidavit and giving of evidence for this witness (r 31.58(1)) even though generally proceedings in English (r 31.57). - Court has power to make orders concerning interpreters and evidence (r 31.63 + s 61 CPA). - Also note that Court has not made any orders regarding AVL appearance and therefore object to giving evidence in that form (r 31.3). Also note that other side bears cost of organising an interpreter and none is present (r 31.58(2)). - If Court overruled objection on these grounds, would object to evidence under EA which applies (r 31.64). Submit that even though all witnesses are presumed competent (s 12 EA), this witness is unable to understand questions and give understandable answers because of language barrier (s 13 EA) and that obstacle cannot be overcome because an interpreter is not present (s 13(1) + s 30 EA). - Would also seek costs thrown away because of breaches of UCPR by other side concerning AVL + interpreted evidence + interpreted affidavit (r 42.10 + s 98 CPA). Question 7 Fireworks accident - fireworks co employee dies - estate is suing re unsafe workplace. Can you use evidence of: a) Email obtained by a colleague while snooping around on his boss' computer. Email is from lawyers to the fireworks boss re "we advise your practices are unsafe and you should improve to avoid liability". Email is forwarded from colleague to dead guy (not clear when/if work email etc). b) There was only one witness, 13 year old nephew, he doesn't want to go to court. - - - Assuming evidence is relevant and admissible (s 55/56 EA), then the email between fireworks boss and lawyers would be a confidential communication (s 117(1) EA)). Could not be adduced as it would be covered by client legal privilege in EA (S 118 + 119). It appears as though the email principally relates to getting legal advice about practices and liability and has been prepared for dominant purpose of getting advice (s 118 + 119 EA, Esso). No suggestiong that client legal privilege has been lost by consent, or implied waiver (s 122, Mann v Carnell). Email has been surreptiously forwarded by person who was acting outside scope of agency when they forwarded the email. - - - Only way email could be adduced is if it was argued successfully that there was fraud or misconduct on part of lawyers acting for FW company (s 125(1) EA). No suggestion that this was anything other than routine legal advice. If for some reason privilege did not apply, can be adduced s 48(1), (1)(e). Prima facie relevant: s 55. If adduced to prove truth of assertion that workplace was unsafe, prima facie hearsay: s 59. Is a “document”. Forms part of the records of the business and contains a “previous representation” for the purpose the business: s 69(1). The previous representations appear to be made by a person with personal knowledge of the asserted fact or knowledge on the basis of information supplied by a person who might reasonably be supposed to have personal knowledge: s 69(2), (4). Though about general liability, not preared in contemplation of or in connection with an Australian proceeding: s 69(3). Can be tendered to prove truth of asserted facts. Proof / authentication of the doucument can be done by affidavit by appropriate deponent: ss 170-172. If process involved in production of document, could rely on s 147 EA. Question 8 There was an accident in 1990, guy is seriously injured and has PTSD. Guy tells his wife about the accident in 2015, hearing is in 2020. You want to call evidence from wife re what husband told her in 2015. Other side objects to it because hearsay, saying the accident was not fresh in the guy's mind when he told his wife about the accident. The guy is now seriously ill and in hospital. a) What subs do you make re admissibility of the wife's evidence? b) If the evidence gets on and xxn'd, then the other side wants to call 2 rebuttal witness who were there at the time of the accident to show that the husband is unreliable how do you prevent that getting on? (a) - - (b) Assuming evidence is relevant and admissible (s 55/56) and wife is competent/compellable to give sworn evidence (s 12 & 21), wifes evidence about what her husband said is hearsay because it is a previous representation (dictionary) from a person (husband) made out of court. Prima facie excluded (s 59(1) EA). It is first-hand hearsay as wife saw/heard representation by husband and husband’s knowledge based on his own experience (s 62 EA). As these are civil proceedings (dictionary), and husband is unavailable to give evidence due to ill-health (dicitionary). S 63 applies (s 63(1) EA). Hearsay rule does not apply to evidence from wife because she saw/heard previous representation from husband (s 63(2)(a)). For evidence to be adduced, must have given notice (s 67(1) EA) at least 21 days before hearing (UCPR 31.5). - - - - Assuming evidence is relevant and admissible (s 55/56) and 2 witnesses are competent/compellable to give sworn evidence (s 12 & 21), Credibility evidence (s 101A) is not admissible (s 102). However, other side may seek to have their evidence admitted under s 108A as previous representation (dictionary) has been admitted into evidence (s 108A(a)) and husband has not been called to give evidence (s 108A(b)). Evidence of this kind cannot be admitted unless it would substantially affect assessment of credibility of husband (s 108A(1) EA). Court is to consider matters in s 108A(2) including whether evidence shows that husband knowingly or recklessly made a false representation when they were under obligation to tell truth and period of time between events subject of representation – accident in 1990 – and making representation to wife in 2015. Submit that there is no evidence he knowingly or recklessly made false representations and therefore evidence shouldn’t be admitted. Question 9 Your client gets judgment for 1.2 mil. Three months ago, you offered to settle inclusive of costs for 1.1 mil. What costs order do you seek and why? How would you draft the offer to make sure you got the costs you wanted? - - - Offer would need to identify claim, proposed orders for disposing of claim, NOT include amount for costs, bear a statement that offer is under r 20.26, and specify time period for acceptance (r 20.26(2)). Offer is without prejudice unless explicitly state otherwise (r 20.26(9)). Generally, time for acceptance of offer is 28 days before hearing as offer made 3 months before trial (r 20.26(5)(a)). If offer include statement as to costs or otherwise departed from r 20.26, could also be considered Calderebank offer (Calderbank). Would ensure offer complied with rules in 20.26 and not Calderbank offer as threshold is more difficult with latter. As offer was not accepted and offer was less favourable than judgment, r 42.14 applies. Would seek costs (NOM 18.1) and affidavit (r 31.2) including copy of offer (r 20.30(3)(c). Would seek costs on indemnity basis from the day after the date of the offern (r 42.14(2(b)(i)) and costs on ordinary basis prior to that date (r 42.14(2(a)). Court has power to make such costs order (s 98 CPA). If offer had been Calderbank offer, would have to demonstrate that rejection of offer was plainly unreasonable in all circumstances (Calderbank). Question 10 The barrister on the other side is really junior. You got the brief last minute. There's new legislation re conclusive evidence that means that the other side’s defence is knocked out and trial will go far less time - it's apparent to you that the baby barrister isn't aware of it. Baby barrister tells you that they will serve a huge tender bundle which they are about to prepare. You are worried about wasting time and money. you tell your solicitor. They don't want to do anything about it and keep the 2 week trial. What do you do? - - - - - Duty to client (BR 35) requires that client’s interests are put first. While two week hearing more lucrative, it is in client’s interests to have matter dealt with as quickly as possible. Need to tell client about binding authority so they can provide proper instructions (s 37). Duty to tell opponent about the case (BR 49, Chamberlain, Mullins, Kaye v Woods) does not apply as duty is not breached merely by failing to correct error by opponent (BR 51). However, duty to inform court about binding authority (BR 23, 29). Would be appropriate to inform opponent of authority given are obliged to tell court in any event. Duty to act independently (BR 42). Duty to client is not breached merely because instructions concerning conduct of case are not followed to exercise forensic judgment concerning confining issues and presenting case as quickly and simply as possible (BR 35, 43). Also have a duty to efficient administration of justice (BR 58) including taking up as little court time as possible (d) and narrowing the issues in dispute (e). All of above should be explained to client so they can give adequate instructions about how to proceed (BR 37) and if you are instructed to run the hearing anyway, as this concerns conduct of proceedings and not compromise, can consider returning the brief (BR 105(g)). Question 11 You are doing some research and you find some previous cases (in other proceedings in another civil court by another judge) with findings of fact that are similar to facts in issue in your proceedings. You also learn that the Defendant was convicted of fraud 5 years ago? Can you use the information? Why/how? - - Findings of fact in judgments: o No. Cannot use evidence of facts or decisions made in another proceeding to provide the existence of a fact that was in issue in those proceedings: s 91(1) EA. o The relevant facts need to be established in the current proceedings. o There is not an exception even if the judgments are relevant for another purpose: s 91(2) EA. Cf s 60(1) EA. o If there was a transcript of evidence of the other proceedings, potentially could tender that as an exception to the hearsay rule: s 59 s 64(2) EA). Finding of conviction: o Section 92 applies. A certificate of conviction could be tendered as evidence of the conviction (s 178 EA) and the hearsay rule does not apply. o Practically, this means that the conviction can be relied upon, if relevant, to attack someone’s credibility in a civil proceeding (as the evidence will be admitted for a hearsay purpose and thus falls outside definition of credibility evidence in s 101EA). o However, cannot be used for a tendency purpose (as only hearsay and opinion rules excluded). - February 2020 exam – civil paper Question 1
